On March 10, 2009(1) this Commentary reported upon the deplorable fate of the Federal Judiciary, particularly during the 110th Congress (2007 - 2009), when the George Walker Bush Administration had explicable difficulty enticing competent folk to accept nomination amid the inevitable attempt at character assassination from certain liberal Senators, protracted delay and/or defeat, text following.

On April 7 this Commentary reported upon the objective and unfortunately necessary, recommendation for more Federal judgeships issued by the Judicial Conference of the United States.( From the Judicial Conference Objectivity and Sage Foresight - A Coincidental Gift to the Left )

The impending near disaster goes beyond the Federal courts severely impacted by unlawful immigration litigation, addressed in the October 2 commentary.  It engulfs almost the entire Federal Judiciary.

This very week the United States Senate is commencing proceedings, beginning in a Judiciary Committee subcommittee, on the Federal Judgeship Act of 2009, S 1653, which if enacted as drafted would create 63 additional Federal judgeships.  That legislation as proposed in 2008 was sponsored by Senators Patrick J. Leahy (D-VT) and Orrin G. Hatch (R-UT).  A purpose of that proposal was an attempt at bipartisanship - that is, to give both political parties some input into choice of nominees.  There is theoretical and practical disagreement as to the extent to which that goal could have been, or ever would have been, achieved.

Given Senator Leahy’s success in blocking or unprecedentedly delaying confirmation of George W. Bush nominees, many observers are prophesying the 111th Congress (2009 - 2010) enactment of sweeping legislation.  Sweeping what?  The worrisome, and probably realistic, answer is sweeping an unprecedented number of activists on to the Federal Bench.  The Bench needs the filling of its astronomical number of vacancies, those created under Leahy leadership and those created by the gigantic increase in legislation.

Unless, as appears possible but unlikely, there were some bipartisan legislative accord and concomitant White House/Department of Justice cooperation, the first two Barack Hussein Obama years would see what with little or no exaggeration one could term the veritable packing of the Federal Judiciary with activist and leftist Judges.  The left has followed what may turn out to be its dangerously successful route:  (1) Torture qualified traditionalist nominees so that few such academics, judges and lawyers would consent to be nominated and few of those nominated would be confirmed.  (2) Agree to an objective and nonpartisan Judicial Conference of the United States recommendation to create more judgeships.  (3) Pack the Federal Judiciary.

Marion Edwyn Harrison

1) A New Administration and a New Congress: A Gloomy Initial Portent as to the Federal Judiciary?

Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation. http://freecongress.org/