Sometimes you get a shot across the bow – it reminds you why you think what you do, are headed where you are, and insist on knowing what you know. Political leftists – what we used to call progressives – want the federal judiciary. They are well on their way. Trump’s reelection would stop the takeover.
In total, our nation has 870 constitutionally authorized judgeships, including nine Supreme Court justices, 179 judges on 13 US Courts of Appeal, 673 judges on 94 federal district courts, and another nine judges on our Court of International Trade, formerly US Customs Court.
The number of judges fluctuates based on deaths, retirements, gaps from delays in Senate confirmation. Numbers also fluctuate when Congress increases judge numbers, typically in response to changes in population growth, but also with political agendas.
While the number of Supreme Court justices has been nine for 100 years, some Democrats want to raise that number, pushing leftist jurists to tip the balance of the Supreme Court. Franklin Delano Roosevelt thought about that – and paid a steep price, too.
More concretely, since 1950 Congress has doubled the number of federal appellate judges, tripled district judges. While our population has doubled, this move triggered more appointments, helping tip the federal judiciary leftward – that is, more activist, anti-textual.
Behind the scenes, the judiciary expanded in other ways. Over the past 50 years, Congress saw fit to establish subsidiary courts – to manage the growing burden of progressive priorities. Thus, we saw US magistrates, a temporary US Court of Appeals, US Bankruptcy and Tax courts, US Court of Claims, a DC federal circuit, US Court of International Trade, eleventh circuit, and new judges – 11 circuit, 61 district, and 13 temporary district judges – plus that infamous FISA, or Foreign Intelligence Surveillance Court, compliments of Jimmy Carter.
Main point: “Article III” and “non-Article III” courts have grown in the past half century, along with the ranks and power of judges, a majority of whom were liberal, progressive, leftist.
That brings us to now – and that “shot across the bow.” Last week, the 4th Circuit ruled – 2:1 – that a former high student born female but now “identifying” male had the right to use a male high school bathroom – despite a private option. This is just the latest round of judicial activism aimed at reengineering all of us, that is, America. See, e.g., https://www.aclu.org/sites/default/files/field_document/grimm_v._gloucester_county_school_board_-_opinion.pdf; http://blogs.edweek.org/edweek/school_law/2020/08/federal_appeals_court_backs_tr.html.
Put aside the case details. We all have opinions. Look behind the decision – and you will see why a second Trump term is vital. On this issue and others, the activist federal bench exercises outsized powers over individual liberties, assuming to itself the right to revise and redefine our Constitution, as well as national and personal priorities, prerogatives, and identities.
Activist courts are now leading – not interpreting – Congress and the Executive. Courts are legislating our nation’s identity, norms, morality, mentality, healthcare, border enforcement, law enforcement, and national security – from upending immigration laws to banning census questions, blocking abortion restrictions to expanding the administrative state.
So, why is all this happening? In short, because a traditionally restrained federal bench, institutionally respectful and constitutionally faithful, has been politicized. Analysis of 1000 federal decisions, at both the district and circuit court levels, would prove the point.
But take the latest case – that 4th Circuit, 2:1 opinion that throws open what a boy and girl are, what a man and woman are, whether those who claim to be one can assert rights to bathrooms of the other, and whether the federal bench has any right to say what is and is not.
Recall, this was a 2:1 decision. Interestingly, while President Trump has managed – with a Republican-led Senate – to appoint 200 judicially restrained judges, the total number is still 870. Most are politically liberal, judicially activist, compliments of Presidents Clinton and Obama.
In this case, without getting bogged in detail, the two judges ruling against the county trying to keep boys and girls bathrooms separate, while offering a female-turned-male or male-turned-female option, were Democrat appointees – both appointed by Obama. The one who said “no” was appointed by Ronald Reagan, and later George H.W. Bush.
Go deeper to see how pervasive activist thinking is – and why we need constitutionally faithful judges like President Trump has appointed – along with a Republican Senate to confirm them.
The two Democrat circuit judges – who ruled against the school – were Obama-appointee Henry F. Floyd, who has waded into other social issues, and Obama-appointee James A. Wynn, Jr.
Interestingly, Wynn failed to be confirmed when nominated by Bill Clinton but got re-nominated by Obama and eventually confirmed in 2010. He wasted no time getting activist.
Since 2010, he has ruled in favor of Obamacare’s “individual mandate,” which Trump removed. He ruled that voter ID laws violate the 14th Amendment, upending state-level fraud protections.
In 2017, he ruled against the Bladensburg “Peace Cross,” a memorial to WWI fallen, saying it violated the First Amendment’s Establishment Clause – that is, the hundred-year-old public commemoration should be torn down as an unlawful “establishment” of religion. In 2019, he was reversed by the Supreme Court – with newly confirmed Trump appointees.
Capping that Obama judge’s activism, he ruled against Trump in 2017, saying the President exceeded his authority to protect Americans from terror with travel restrictions. He called the country-specific restrictions “invidious discrimination.”
Bottom line: Democrats have politicized the federal bench, making it a crucible for wild-eyed activism, giving leftists a second bite at the legislative apple – and the chance to reshape American society in their own image. That is dangerous to a balanced, working republic.
Nutshell: Political leftists – what we used to call liberals – are after the federal judiciary. They intend on remaking America. Trump’s reelection stops that, which is why he must win.