It's not overstatement to describe Steven G. Calabresi's op-ed piece in the Wall Street Journal yesterday as "hysterical."
Calabresi is a professor of law at Northwestern University and a co-founder of the Federalist Society, which is — depending on who you ask — a gathering of high-minded, scholarly lawyers and students or the insidious vehicle for a far right-wing Borkian nightmare.
The good professor is concerned about a Barack Obama presidency, in particular Obama wielding the constitutional power to make lifetime appointments to the federal judiciary.
How come? Because this one time Obama remarked that in considering the résumés of prospective judicial nominees, he would take into account relevant life experience along with academic and professional qualifications.
In other words, he might eschew the purely pointy-headed Ivy League intellectual elitists that political conservatives love to deride. Better a judge with good qualifications and a working knowledge of the society of individuals whom her decision making is most likely to affect. A horrifying prospect, alleges Prof. Calabresi.
This is a bad thing, says Calabresi, and offers as his own nightmare scenario the U.S. Court of Appeals for the D.C. Circuit, one of the 12 regional appellate courts a step below the U.S. Supreme Court. And because the Supreme Court accepts fewer than 100 cases each year, the courts of appeal are generally the last stop for federal litigation.
The D.C. Circuit is especially important because its jurisdiction is the seat of national government where much of the wrangling over federal legislation takes place, in particular corporate and regulatory litigation. For example, that dealing with environmental protection. In that context, Calabresi is frightened that Obama's judges will favor America's fields and streams over the Great God Mammon.
But what Calabresi doesn't mention is that of the 13 judges currently sitting on the D.C. Court of Appeals, 10 were appointed by Republican presidents. And he's terrified that Barack Obama will upset that balance [sic]. Ultimately, his desire is that conservative Republicans will completely line the federal benches with righteous Federalist Society disciples in perpetuity.
He is equally hysterical with respect to the U.S. Supreme Court, seven of whose nine current members were appointed by Republicans, and suggests that the next president may be faced with as many as four vacancies.
The two Democratic appointees, Stephen Breyer and Ruth Bader Ginsburg, often side with the so-called liberal wing of the Court, but not always. Two other Republican appointees, John Paul Stevens and David Souter, often side with Breyer and Ginsburg.
A third Republican, Anthony Kennedy, is considered the "swing vote" but has outraged conservatives with his positions on a few beloved hobbyhorse/obsessions like homosexuality, abortion, and federal underwriting of the favored religion, Christianity.
While they're generally pleased with the remaining four Justices, Antonin Scalia, Clarence Thomas, and relative newcomers Chief John Roberts and Samuel Alito, the latter's predecessor, Sandra Day O'Connor, was yet another Republican appointee who often disappointed social conservatives with her heretical opinions on the aforementioned topics.
So what the FedSoc types are seeking is essentially do-overs on Stevens, Souter, and Kennedy, and the retirements of Stevens and Ginsburg are to provide those opportunities.
In short, the Federalist posse, through compliant Republican administrations, wants to control the appointment of every single federal judge in the country and if the U.S. electorate doesn't allow it to do so then — get this — "nothing less than the very idea of liberty and the rule of law are at stake." He also claims that Obama's judges will surely facilitate a "mass freeing of criminal defendants."
What sensationalist, fearmongering rubbish.
It isn't Barack Obama's fault that the GOP screwed up on Stevens, O'Connor, Souter, and Kennedy, not to mention earlier Republican Justices like the "radical" Earl Warren and Harry Blackmun, a Nixon appointee and notorious author of Roe v. Wade.
One of Senator John McCain's last ditch desperate attempts at maintaining the Republican Party's control of the White House is to warn against a Democratic monopoly on both the executive and legislative branches of government and yet here is Calabresi overheatedly advocating for Republican control of all three.
George W. Bush, a willing and self-satisfied Federalist Society accomplice himself, has had his eight years to bend to its whims.
It's time for that to change.
More: Prof. Calabresi's Lexis-Nexis bill is past due.