The GOP may have won the 2016 presidential election, but it won’t mean that much if the Democrats can block the appointment of conservative (or even moderate) judges and agency heads — a specter that may soon become a reality. That would leave liberal bureaucrats in effective control of some federal agencies. It would also result in many of the nation’s federal appeals courts still being controlled by left-wing judges appointed by Obama and Clinton.
If the Democrats gain even a few seats in the Senate, they will be able to block the appointment of even a mildly conservative Supreme Court justice to replace elderly moderate and conservative justices like Anthony Kennedy and Clarence Thomas.
The GOP currently controls the U.S. Senate by a very narrow margin. Its effective control of the Senate may soon disappear due to the December special election in Alabama, where one poll shows the staunchly liberal Democrat Doug Jones leading controversial GOP nominee Roy Moore. Even if the GOP wins that race, it could lose control of the Senate in 2018 due to the potential losses of Senate seats it currently holds in Nevada and Arizona.
On paper, the GOP currently has a 52-to-48 majority in the Senate. But the Democrats are united in opposition to even well-respected, mainstream Republican nominees, while some GOP senators occasionally cross party lines to vote against conservative legislation, such as changes to Obamacare. On social issues, Maine’s Susan Collins (R) is more like a Democrat than a Republican.
Due to uniform Democratic opposition, even well-qualified, uncontroversial nominees are barely getting confirmed. Steven Engel was just confirmed to be Assistant Attorney General in the Justice Department’s Office of Legal Counsel with a mere 51 votes. Noel Francisco, a talented, mainstream lawyer who successfully argued landmark cases in the Supreme Court and other courts, was confirmed to be Solicitor General with just 50 votes. As liberal reporter Jess Bravin noted, that vote reflected the suspicion of Democrats toward even “accomplished professional” lawyers nominated by Trump.
Even “Never Trump” law professors such as Orin Kerr and Jonathan Adler have said Trump’s judges and Justice Department nominations are mostly good picks who are well-qualified for their posts. But the Democrats have voted as a bloc against the vast majority of these nominations, simply because they are not liberal.
To try to bring the confirmation process to a grinding halt, the Democrats are now systematically demanding cloture votes on even moderate Republican nominees. They now oppose even nominees they voted for in the past, such as officials who previously served ably in the Bush administration without generating any controversy.
The mainstream conservative judge Amul Thapar was confirmed by a Democratic Senate in 2007 to a trial court position after being unanimously rated well-qualified by the liberal American Bar Association. But when Trump nominated him to the Sixth Circuit Court of Appeals, the vote to confirm him was close and along party lines. He did not get a single Democratic vote, even though Thapar is a minority and the Democrats claim to like “diversity.” That is how partisan, and extreme, the Democrats have become.
The unreasonableness of Democrats finds a mirror image among some Republicans, such as those who voted to nominate Roy Moore for U.S. Senate in Alabama, defeating incumbent Senator Luther Strange in the primary. Moore won the Republican primary over Luther Strange with help from alt-right figures such as Steve Bannon, who is obsessed with getting rid of Senate Majority Leader Mitch McConnell (R-Ky).
Moore is better on the issues than his opponent in the general election — left-wing Democrat Doug Jones — but he is much less qualified than Luther Strange. As The Wall Street Journal notes, Bannon is so short-sighted that he will “support any Republican candidate who promises to vote against Mr. McConnell for Senate leader.” Moore, who has been critical of McConnell in the past, recently declined to say whether he supports ousting McConnell as majority leader.
Never mind that Mitch McConnell is the chief architect of the GOP’s political survival and success in the 2016 election. McConnell tipped the close 2016 presidential election to Republicans by keeping Justice Scalia’s seat vacant after his death in February 2016, and blocking Obama’s attempt to fill the vacancy with a Democrat.
That prevented a left-wing takeover of the Supreme Court, which already contained four liberal justices who vote together as a block. And it enabled the GOP to campaign for the presidency by telling voters they could prevent a future left-wing takeover by voting for Trump.
Many upscale Republicans voted for Trump, despite disliking him personally, in order to prevent a liberal takeover of the Supreme Court. A left-wing Supreme Court would have issued far-reaching rulings that would have radically transformed America at the expense of taxpayers, crime victims, property rights, religious freedom and free speech for small businesses, free-market groups, and college students.
Multiple bloggers at this very web site held their nose and voted for Trump in large part because he promised to appoint well-respected conservative judges to the Supreme Court. (Trump has turned out to be the most conservative President since Reagan, but we didn’t know that in 2016).
The Supreme Court was an issue highlighted by McConnell’s shrewd decision to keep the pivotal seat vacant. McConnell swiftly and decisively made the decision to keep Scalia’s seat vacant until after the election. He stuck to that decision and kept his caucus together even when many political commentators thought that the Democrats could peel off enough wavering Republicans to force the confirmation of Democrat Merrick Garland to the seat.
Both McConnell and President Trump wisely supported Luther Strange in the primary over Roy Moore. Strange has a much better grasp of the issues than Roy Moore, and a much better understanding of the details of public policy.
The Wall Street Journal writes that Strange, “the current Senator who was appointed by Alabama’s former Governor to replace Attorney General Jeff Sessions, is every bit as conservative as Mr. Moore” without the controversy that surrounds Moore (indeed, Strange is more conservative on crime). Had he won the Republican primary, Strange would “be running away with the special election, while Mr. Moore was barely ahead of Democratic nominee Doug Jones even before” recent bad press coverage.
Liberal newspapers like the Washington Post, which are now digging up details about Moore’s checkered youth decades ago, waited until the general election to do so, when liberal Democrat Doug Jones would benefit as a result. Had they dug up these details in the Republican primary, Luther Strange would have won the primary instead and would be cruising to victory now in the general election.
In statewide races in Alabama, Republicans usually win general elections by a comfortable margin. For example, Strange was elected to be Alabama’s attorney general in 2014 by a margin of nearly 20 percentage points. In 2017, he was appointed to the U.S. Senate seat vacated by Senator Jeff Sessions when Sessions became the U.S. Attorney General.
Moore is not as popular as Strange with Alabama’s general election voters. Even before the recent bad press Moore has been getting, he had run only neck-and-neck with Jones in several recent polls. By contrast, general election matchups between Strange and Jones had given Strange a hefty lead over Jones.
The December election in Alabama is likely to be very close, and Republicans could very well lose, even though Doug Jones’s extreme liberal positions (such as support for partial-birth abortion) are out of step with most Alabama voters, and even many Alabama Democrats.