Richard Painter

As GOP delay-tactics in the US Senate continue to cause and aggravate judicial emergencies in the nation’s courtrooms, right wing activists demand that Senate Republicans persist in preventing members from voting to confirm Obama’s judicial nominees, even those who won significant bipartisan support. Even former Republican judges have condemned Republican games in the Senate as the number of judicial vacancies and emergencies rapidly grow.

But right wing activists are calling on the Senate GOP to stand firm and further weaken the judicial system. In the effort to paint President Obama as the second coming of who else but Jimmy Carter, Eagle Forum’s Phyllis Schlafly blasted Obama’s purportedly “radical” nominees:

One of the greatest risks of the current lame-duck Congress is the possibility of Senate confirmation of President Obama's radical appointments to federal courts, boards and agencies.

Nominees hoping for confirmation include the radical redistributionist Goodwin Liu, who is seeking a spot on the Ninth Circuit; Louis Butler Jr., who was removed from the Wisconsin Supreme Court by the voters in 2008, and Chai Feldblum, an advocate of same-sex marriage and polygamy who is now enjoying a recess appointment to the Equal Employment Opportunity Commission.

Appointees to federal circuit and district courts can be almost as important as Supreme Court justices because the Supreme Court takes only about 1% of the cases that seek to reach the high court. Lower federal court judges have been making final rulings on dozens of controversial issues that should be legislative decisions, including marriage, parents' rights in public schools and immigration.

Some have lamented that Jimmy Carter, who served only one term as president, didn't get a chance to make any Supreme Court appointments. But don't cry for Carter — he had plenty of influence on the judiciary.

…

The historic election of 2010 delivered a clear "shellacking" to President Obama's policies, one of which was his choice of federal judges, including the extremely left-wing Elena Kagan, now on the Supreme Court. The Senate should refuse to confirm any of Obama's judicial or agency nominees in the lame-duck session.

Of course, Goodwin Liu is seen as one of the country’s top legal and constitutional scholars; Louis Butler did lose his 2008 race, but only after a vicious smear-campaign by corporate interest groups, and Chai Feldblum is a prominent law professor and disability-rights activist.

Rick Manning of the pro-corporate Astroturf group Americans for Limited Government is also calling on the Senate to reject Liu, by propagating the false charge that Liu believes health care is a constitutional right.

His views that health and welfare issues are constitutional rights are outside-the-mainstream, pitting those who believe in limited government power against those who would give unfettered power to the federal government.

Liu’s extremism is particularly disturbing because the court system is likely to be confronted by a variety of cases related to health care. Liu’s belief that health care is a right would put him firmly in the position of supporting an even broader expansion of the ObamaCare legislation to eliminate the private provision of health care services.

But as the Alliance for Justice points out, Liu in his legal writings made almost the opposite case about welfare rights such as health care:

[Liu] has argued for a model of judicial restraint, concluding that courts should not interpret the Constitution to create affirmative welfare rights, whether to education, health care, or minimal levels of subsistence. Liu has explained that “such rights cannot be reasoned into existence by courts on their own” and has explained that his understanding of the judicial role “does not license courts to declare rights to entirely new benefits or programs not yet in existence.”

Richard Painter, a former lawyer for the Bush White House, made clear in the Los Angeles times what activists like Phyllis Schlafly and Rick Manning are really up to. He argued that right wing groups are playing political games with the judiciary in their opposition to a renowned scholar like Liu:

A noisy argument has persisted for weeks in the Senate, on blog sites and in newspaper columns over President Obama's nomination of Liu to the U.S. 9th Circuit Court of Appeals. This political spat over a single appellate judge makes no sense if one looks at Liu's academic writings and speeches, which reflect a moderate outlook. Indeed, much of this may have nothing to do with Liu but rather with politicians and interest groups jostling for position in the impending battle over the president's next nominee to the Supreme Court.