January 20, 2010

Brown Win Bad News for Obama Nominees

CFJ Executive Director Curt Levey on the impact of Scott Brown’s win:

“While most of the buzz about the impact of Scott Brown’s election to the Senate has centered on President Obama’s legislative agenda – particularly health care and cap and trade – the impact on his judicial and executive branch nominees, whose fates are completely dependent on the Senate, will be at least as great. It is no coincidence that Erroll Southers, Obama’s controversial pick for the Transportation Security Administration, withdrew his nomination this morning.

“It is not just the Democrats’ loss of a filibuster-proof Senate majority that puts Obama nominees in jeopardy. Red and purple state Democrats have new fear in their hearts and will be bending over backwards – and to the right – to be more in step with the folks back home. Obama’s more radical nominees are obvious targets for every moderate Democratic senator trying to portray themselves as not just another Washington liberal. In the end, all it takes to put an Obama nominee permanently on the back burner is the opposition of a couple of those moderate Democrats.

“Moreover, unlike legislation, judicial and executive branch nominees are wholly owned by the President. Because senators get virtually no credit or blame for a nomination or for the nominee’s performance after confirmation, approving controversial nominees is done out of deference to the President. Yesterday’s blow to Obama’s prestige means that Democratic senators will feel less obliged to defer to the President.

“All of these factors will be magnified in the likely case that President Obama is faced with nominating one or more Supreme Court Justices later this year. At least one High Court vacancy is probable in light of Justice Steven’s decision not to hire a full complement of law clerks for the next term and Justice Ginsburg’s continuing battle against pancreatic cancer. Republicans were lamenting the problem of facing a Supreme Court confirmation battle before the 2010 elections could restore the threat of a GOP filibuster. Scott Brown’s victory eliminates that problem.

“Among those most immediately affected by the changed political landscape will be Obama district court nominees Edward Chen and Louis Butler. Chen characterized immigration laws as ‘institutionalized racism’ and described his ‘feelings of ambivalence and cynicism when confronted with appeals to patriotism’ – in this case the singing of ‘America the Beautiful’ – because there is ‘too much injustice and too many inequalities’ in America. Butler’s record displays hostility to Second Amendment rights and a willingness to ignore precedent in order to rule for criminal defendants. After yesterday’s election, red and purple state Democrats are in no hurry to vote for these radioactive nominees and may well ask their leadership to put off a vote on the Senate floor.

“Among the executive branch nominees most immediately affected is Justice Department nominee Dawn Johnsen. Johnsen’s controversial views – for example, arguing that restrictions on abortion violate the Thirteenth Amendment’s prohibition against slavery and attacking the bipartisan Hyde Amendment’s prohibition on federal funding of abortions – have stalled her nomination for the last year. Johnsen’s chances for confirmation seemed buoyed by Sen. Arlen Specter’s recent flip-flop decision to support her. But Scott Brown’s election means her nomination is now likely dead in the water.

“Another ultra-liberal Assistant Attorney General nominee, Chris Schroeder, also saw his chances for confirmation take a nosedive last night. In addition to defending Johnsen’s radical Thirteenth Amendment theory, Schroeder has repeatedly endorsed judicial activism, including the empathy standard disavowed by Justice Sotomayor at her Senate hearing last summer.

“Also on the legal front, the nomination of Chai Feldblum to the Equal Employment Opportunity Commission is now in serious jeopardy. Feldblum was among the leading signers of a 2006 letter denouncing the legally ‘privileged’ status of marriage and demanding ‘governmental and private institutional recognition of diverse kinds of … families,’ including ‘households in which there is more than one conjugal partner.’ Combine that with Feldblum’s argument that the religious liberty guaranteed by the Constitution should give way to her vision of ‘sexual liberty,’ and there’s plenty of reason for moderate Democrats to worry about giving her their stamp of approval.

“Until yesterday, the conventional wisdom was that virtually all of Obama’s controversial nominees would squeak through the Senate. But Scott Brown’s victory has transformed the political calculus on which that wisdom was based. At a time when Americans – even Massachusetts residents – are signaling their anxiety about government swinging too far to the left, look for Democratic senators to stand up against Obama nominees hostile to gun rights, patriotism, law enforcement, and mainstream social values.”