Immigration Push Back: Don’t Confirm His Judges
Here’s a strategy that would unite Republicans and get Obama’s attention in a way that shutdowns don’t
By Curt Levey
March 16, 2015 7:12 p.m. ET
57 COMMENTS
Congress’s approval of unconditional funding for the Department of Homeland Security was an embarrassing setback in Republicans’ struggle to respond to President Obama’s unilateral rewriting of U.S. immigration law. The collapse of the GOP’s plan to tie DHS funding to annulling the president’s immigration orders left the party with two options: sit back and hope that a federal judge’s temporary injunction against the November order is made permanent and is upheld on appeal, or come up with a new plan to force Mr. Obama’s hand.
If Republicans opt for a plan, their best bet is a vow not to confirm the president’s appeals-court nominees until he rescinds his immigration fiats. This strategy has virtues that others do not.
To be sure, the simplest approach for congressional Republicans would be passing a bill that rescinds the immigration orders or tightens the underlying statute. But they lack the votes to override Mr. Obama’s inevitable veto.
Ted Cruz proposed denying a vote on Mr. Obama’s nominee for attorney general, Loretta Lynch, unless the president withdraws his orders. But many GOP senators are reluctant to block the nation’s first black female attorney general, and Senate Majority Leader Mitch McConnell says Ms. Lynch will get a vote. Mr. Cruz has also suggested blocking every executive or judicial nominee “outside of vital national security positions”—a proposal that would meet with even wider opposition.
Still, Mr. Cruz is on the right track, and a more modest approach has a better chance of success: Deny confirmation only to Mr. Obama’s nominees to the U.S. Courts of Appeals, which rank just below the Supreme Court and have the last word on most legal issues.
Tying circuit-court nominations to the president’s executive actions is a principled response because the circuit courts will likely have the final say on the constitutionality of those orders. The Supreme Court is unlikely to decide the issue before Mr. Obama leaves office, and the Senate traditionally accords the president less deference on circuit nominees than on executive or district-court nominees. A circuit-court response is also proportional because circuit nominees make up just one-fifth of all judicial nominees and a tiny fraction of all presidential nominees.
There is little risk of the public outrage that might accompany a DHS shutdown or even a fight over a cabinet nominee. Thus it will be easier to get the votes of enough Republicans—10 of 11 Republicans in the Judiciary Committee, or 51 Republicans on the Senate floor, to block or defeat nominations.
Nonetheless, denying Mr. Obama the power to shape these all-important circuit courts would give Republicans nearly as much leverage as a broader approach. Judicial appointments are an important part of any president’s legacy because federal judges serve for life, long beyond the terms of the president and his executive appointees. Judicial confirmations slow to a trickle during the final year of a presidential term, so Mr. Obama knows that 2015 is the last good year for getting judges confirmed. This also increases GOP leverage.
Short of conceding the fight, the president can do little to ameliorate the pain caused by a circuit-court strategy. While he can potentially bypass GOP opposition to his executive-branch nominees through recess appointments, using them to put a judge on the bench for a year or two of what would otherwise be a lifetime term accomplishes little.
Republican senators will need strong support from their base to sustain this strategy long enough to make it successful, and they are likely to get it. The GOP base is united in wanting to resist Mr. Obama’s left-leaning judicial nominees.
If Republican senators stick together, this is a no-lose strategy. Either the president relents by rescinding or substantially modifying his immigration orders, or Republicans halt his leftward transformation of the circuit courts and keep judicial vacancies open for a possible GOP president in 2017.
The president will accuse the Senate of failing to do its constitutional duty. But that gives Republicans the opportunity to remind the American public of Mr. Obama’s failure to do his constitutional duty to “faithfully execute,” rather than rewrite, federal law.
There are risks, but congressional Republicans need to decide if they are serious about fighting President Obama’s executive actions on immigration. If they are, the circuit-court strategy may be the only one with a good chance of success.
Mr. Levey, a constitutional law attorney, is president of the Committee for Justice.
http://www.wsj.com/articles/curt-lev...ges-1426547531
