A Tale of Two Senators on Judges and Court Packing

Democrat Senator Mark Pryor of Arkansas is in trouble for his reelection and one of the reasons is his towing of the Democrat party line on judicial nominees.

Sen. Mark Pryor’s vote in favor of Obamacare, without which that legislation would not have passed the Senate, should be enough to cause his defeat in the 2014 Arkansas race Senate. And, at the end of the day, I suspect it will be.

However, there is also the matter of President Obama’s judicial nominees. Pryor has not voted against the confirmation of a single one. Not even far left-winger Goodwin Liu, whom the Senate did not confirm.

To be sure, a respectable school of thought holds that the U.S. president should have his judicial nominees confirmed without regard to their ideology, especially when we’re talking about a lesser court than the Supreme Court. But Pryor does not hold this view. He voted to sustain the filibuster of Miguel Estrada’s nomination. Even the Washington Post found that a vote to confirm Estrada was “an easy call.”

The Judicial Crisis Network has gone after Pryor for this, especially in light of the current court packing controversy.  Here is the ad. 

The funny part came when Senator Pryor responded to the ad. 

Mark Pryor’s office has circulated this document in response to the video, explaining that he did not vote for three of President Obama’s judicial nominees. Well, he ain’t a lawyer for nothin’. Each of the three votes cited by his office involved nominations for which he didn’t vote at all, and which were confirmed without opposition.

Sheri Chappell: 90-0 (Pryor did not vote)

Edward Davila: 93-0 (Pryor did not vote)

Joseph Greenaway: 84-0 (Pryor did not vote)

In other words, every single time Senator Pryor voted on a judicial nominee, his vote was to support President Obama, and he does not deny that fact. Or, to put it another way: He has never voted against one of President Obama’s judicial nominees. None. Zero.

Senator Orrin Hatch exposes Democrat hypocrisy on the issue and the importance of fighting against President Obama’s court packing efforts. 

Democrats opposed more Republican D.C. Circuit appointments in 2006 because "written decisions per active judge" and "total number of appeals filed" had declined. Since then, these benchmarks have declined by 27 percent and 18 percent, respectively. D.C. Circuit Chief Judge Merrick Garland confirms that cases scheduled for argument per active judge have also declined by 11 percent since then. According to the Administrative Office of the U.S. Courts, the D.C. Circuit ranks last among all circuits in new appeals coming in and resolved appeals going out. Democrats also opposed more Republican D.C. Circuit appointments in 2006 because judicial emergency vacancies had not been filled. Judicial emergencies have increased by 90 percent since then, and the percentage of those vacancies with nominees has declined from 60 percent to only 47 percent.

So what explains these unnecessary nominations? President Obama said after his re-election that he is not going to wait for Congress to act, but will take unilateral executive action to implement his agenda. The D.C. Circuit, more than any other, reviews decisions and actions by the executive branch agencies implementing that agenda.

It is no wonder, then, that the Senate majority leader has said that he wants to "switch the majority" on the D.C. Circuit. One liberal activist told The Washington Post that "the president's best hope for advancing his agenda is through executive action, and that runs through the D.C. Circuit."

. . .The better course would be to put his agenda before the American people by putting it through Congress and to appoint judges to courts that really need them.

The problem with putting the agenda before the people is that, like Senator Pryor, it is likely to lose.  Thank you to Senator Hatch and other Republican Senators for standing strong against President Obama’s efforts to pack the DC Circuit.