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Thread: Immigration Push Back: Donít Confirm His Judges

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  1. #1
    Administrator Jean's Avatar
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    May 2006

    Immigration Push Back: Donít Confirm His Judges

    Hereís a strategy that would unite Republicans and get Obamaís attention in a way that shutdowns donít

    By Curt Levey
    March 16, 2015 7:12 p.m. ET

    Congressís approval of unconditional funding for the Department of Homeland Security was an embarrassing setback in Republicansí struggle to respond to President Obamaís unilateral rewriting of U.S. immigration law. The collapse of the GOPís plan to tie DHS funding to annulling the presidentís immigration orders left the party with two options: sit back and hope that a federal judgeís temporary injunction against the November order is made permanent and is upheld on appeal, or come up with a new plan to force Mr. Obamaís hand.

    If Republicans opt for a plan, their best bet is a vow not to confirm the presidentís 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. Obamaís inevitable veto.

    Ted Cruz proposed denying a vote on Mr. Obamaís nominee for attorney general, Loretta Lynch, unless the president withdraws his orders. But many GOP senators are reluctant to block the nationís 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 ďoutside of vital national security positionsĒóa 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. Obamaís 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 presidentís 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 Republicansó10 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 presidentís 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. Obamaís 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. Obamaís failure to do his constitutional duty to ďfaithfully execute,Ē rather than rewrite, federal law.

    There are risks, but congressional Republicans need to decide if they are serious about fighting President Obamaís 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.
    Support our FIGHT AGAINST illegal immigration & Amnesty by joining our E-mail Alerts at

  2. #2
    Senior Member artclam's Avatar
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    Apr 2006
    An interesting idea but it would also incidentally punish all the folks waiting for cases to be heard by circuit-courts. IMO, sacrificing prompt justice to punish the President is not justified.
    Judy likes this.

  3. #3
    Senior Member Judy's Avatar
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    Aug 2005
    Quote Originally Posted by artclam View Post
    An interesting idea but it would also incidentally punish all the folks waiting for cases to be heard by circuit-courts. IMO, sacrificing prompt justice to punish the President is not justified.
    Exactly. I seriously doubt that the problem of illegal immigration will be solved by the Judiciary Branch. While I hope the Texas lawsuit makes it all the way to the US Supreme Court and they win their suit, as they surely should, the history of the US Supreme Court on immigration issues tells a far different story and makes that hope remote. Therefore, the Congress needs to act swiftly and be prepared to defund these corrupt inept agencies doing the opposite of what they're paid to do with regards to immigration. Even then, we're 6 GOP Senators and 1 Loyal President short of what we need to accomplish it, so it's going to be a long, hard 2 years until we have another election to again hopefully get the additional Senate seats and the White House to fix this problem.

    One would think we could convince 6 Blue Dog Democrats to vote with Republicans on this issue to at least move some of these bills and riders out of the Senate and on to the President, but apparently there aren't even 6 Democrats in the US Senate who care enough about Americans to do even that.
    Last edited by Judy; 03-18-2015 at 02:53 AM.
    A Nation Without Borders Is Not A Nation - Ronald Reagan
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