Federal courts have become a key part
of the legislative process. At the same time, polls report falling
public confidence in the courts.
When it comes to the U.S. Supreme
Court, that's hardly news. Many know that the Court is now composed
of four conservatives, four liberals (perhaps calling them
non-conservatives would be more accurate) and one swing vote. It
often decides partisan issues along predictable political lines.
Less well known is the degree to which
lower federal courts are being used for partisan legislative
purposes.
Take the recent action by President
Obama to extend the definition of gun show sales, making background
checks on gun purchasers more likely. He claims he has the right to
take this action in implementing a federal law. His opponents say he
has exceeded his authority under the Constitution and usurped the
powers of Congress, which lacks the votes to block his move.
This kind of dispute increasingly ends
up in a federal district court. The court, which may be located
anywhere in the U.S., often is in a state where officials oppose the
president's action. There is a good chance the judge will be the
appointee of a Republican predecessor of Obama.
The Republican opposition that has
developed the effective political use of the lower federal courts.
In a current case against Obama's actions to limit the deportation
of some illegal immigrants, the Republicans have been able to get a
Texas court to suspend the Obama policy until the case is fully
heard.
The federal district courts have
increasingly become the arena for conflicts between the president and
his opposition. At the very least, the appeal to court gives the
Republicans the ability to delay the application of the president's
policy.
Now this approach has become relatively
common, it is possible that, if the roles were reversed, the
Democrats would do the same thing.
The weakness in the process may be that
the states filing the case could have a difficult time showing they
actually would be hurt by the president's action. The general rule
is that anybody making a complaint has to show real harm, not just an
incidental effect. Courts might toss out cases where states cannot
show a major effect on their official operations.
The Obama administration has opposed a
lawsuit by Nebraska and Oklahoma against Colorado over its law
allowing small amounts of marijuana for personal use. They claim its
effect would spill over their borders.
But the Justice Department says the
effect would be too slight to justify court action. That's true, and
that's the same principle that could be used to stop the use of state
harassment lawsuits against presidential action.
If the current trend is allowed to
continue without limits on the complaints that can be brought against
actions either by the federal government or another state, even if
they are policy disputes without specific harm to the plaintiff, the
courts could become an even more regular part of the legislative
process.
That would inevitably harm an already
wounded, impartial judiciary. It was once believed that, at least
below the Supreme Court level, the president should appoint the most
competent lawyers to be judges. But the political affiliation of
judges has come to mean a great deal, especially in the expectation
they will decide matters previously left to legislators.
With this possibility on mind, U.S.
Senate Republicans heavily used the filibuster to block votes on
Obama's court nominees. Appointees of Republican presidents
controlled most courts.
Finally, the Democrats broke out the
so-called “nuclear option” and eliminated the requirement of a
two-thirds, super-majority vote before nominations to lower federal
courts could even be considered.
That ended the domination of those
courts by GOP appointees. Now Democratic appointees are the majority
of federal judges.
Even with Republican control of the
Senate, Obama has been able to get court appointees confirmed.
Rather than trying to force liberals through the process, he has
concentrated on appointing people who will add to diversity among
judges – women, African Americans, Latinos.
Though the public may be getting used
to the partisan spillover into the federal courts, it seems likely
that falling public confidence results from a sense that the courts
are less like independent umpires and more like active players.
The politicization of many of the
federal courts also represents a reduction in their independent role
among the three branches of government. That could have dangerous
long-term effects.
To save the integrity of the judicial
system, it would help if the Supreme Court would set a better
example.
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