The future of the federal courts has emerged yet again as a prominent issue in the 2020 presidential election. Democrats hope to enact "structural court reforms" if Joe Biden is elected in November. What does this mean? The official Democratic Party Platform endorses expanding the number of judges on the federal bench, and you guessed it, expanding the number of justices on the Supreme Court is also on the table.
In a recent op-ed for NBC, Deputy Campaign Manager and Senior Counsel to Trump 2020 Justin Clark detailed what Democratic control of judicial nominations would mean for the country:
Joe Biden would stack the federal bench with activist judges who find reasons to rule in favor of their own dangerous vision for remaking our country, and those judges hand-picked by Joe Biden and his radical Democrat allies would threaten our fundamental American freedoms. They would abandon the principle of religious liberty, refuse to protect the lives of the unborn and systematically erode the right to keep and bear arms.
Our constitutional rights — and the values we hold dear — are on the line in November. We know who Joe Biden would pick to fill vacant seats: liberal judicial activists who interpret the law based on social norms and judicial fiat, rather than what the Constitution prescribes.
This is why it's essential that we re-elect President Trump to continue protecting our judiciary and its adherence to the Constitution. We simply cannot hand the radical left the power to appoint judges; too many aspects of American life hang in the balance. The risk to all of us, and our constitutional rights, is far too great.
Recently, Article III Project's Mike Davis spoke with the Washington Free Beacon about the impact that Trump's reelection would have on the federal circuit courts:
When Trump took office, Democratic appointees had a majority on nine circuit courts to the GOP's four. The president has "flipped" three of those panels, and Davis believes Trump will turn still more in a second term. For example, 10 Democratic appointees on the Ninth U.S. Circuit Court of Appeals will be eligible for senior status by January 2023. Democratic appointees currently have a three-seat advantage on that panel, putting control of the court within reach for Republicans.
The D.C. Circuit's en banc decision earlier this week on the Flynn case underscores the impact that left-leaning circuit courts have. Judicial Crisis Network President Carrie Severino wrote about the court's decision to deny Flynn's petition in the National Review:
A bedrock principle of law in this country is that justice must satisfy the appearance of justice. That is why Congress passed 28 U.S.C. § 455, which says that a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” As the late Justice Scalia explained, “impartiality in the judicial context” is “the lack of bias for or against either party to the proceeding.” Impartiality “guarantees a party that the judge who hears his case will apply the law to him in the same way he applies it to any other party.” As Andrew McCarthy has written about (here and here), Judge Sullivan’s actions throughout the Flynn case have, to put it mildly, created a reasonable question about his impartiality.
No, the D.C. Circuit’s majority opinion doesn’t tell you any of that, though Judge Henderson’s and Judge Rao’s thoughtful dissents do. Instead, today’s majority hides the ball, telling you that there is nothing unusual to see here. It tells you that if you find yourself sued in federal court, your political views might matter more than your guilt or innocence. It tells you that due process means one thing if you are woke enough, and something entirely different if you had the audacity to work for or support the Trump administration. And it tells you, in no uncertain terms, how little the rule of law means to the modern Left.
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