Bill Whalen

What will Feinstein, Harris do on judicial nominees?

Vice President Joe Biden administers the oath of office to Sen. Kamala Harris of California on Tuesday. One of her powers is over judicial nominees.
Vice President Joe Biden administers the oath of office to Sen. Kamala Harris of California on Tuesday. One of her powers is over judicial nominees. The Associated Press

Once he’s done choosing a would-be “apprentice” from the flotsam of B- and D-list celebrities NBC has steered his way, Arnold Schwarzenegger should invite some California politicians into his boardroom.

That begins with Gov. Jerry Brown. The two could have a tête-à-tête over Schwarzenegger’s insistence that he be called “governor” on air, on the same show that gave America 14 seasons of Donald Trump humiliating lesser notables. A few more Mondays like the last and one wonders how many Californians won’t quite know who’s running the state.

Schwarzenegger should also summon California’s two U.S. senators and task them with a simple project – coming up with a strategy for how to respond once Trump and a Republican Senate start filling a depleted federal bench.

Going into this new year, one of the nation’s three legs of government is fractured at best. According to the United States Courts website, 112 federal judgeships are vacant (eight years ago, Barack Obama had only 54 to fill); slightly half (59) have a nominee waiting in the wings. You can thank the worst Senate work stoppage since the Truman years for this.

What does this have to do with California?

First, nine of the vacancies are in the Golden State (five district and four appellate judges). Of retired judges, six were appointed by Democratic presidents, only three by Republicans.

It’s a partisan distinction worth noting. Two decades ago, a federal judge struck down Proposition 209 and its ban on race-based college admissions (an appeals panel overturned the decision). That judge, Thelton Henderson, was picked by Democrat Jimmy Carter, as was the late Mariana Pfaelzer, who issued a permanent injunction of Proposition 187 soon after voters in November 1994 approved the ban on public benefits for illegal immigrants.

For California conservatives increasingly on the losing side of liberal statewide ballot initiatives, finding friendly jurists becomes not so much a luxury as a necessity.

Second, there’s the question of what card California’s two Democrats senators play come nomination time – not a card, actually, but a paper slip.

Traditionally, the Senate Judiciary Committee gives “blue slip” privileges to each nominee’s home-state senators. Unless both senators support the pick, the nomination won’t go forward. That gives Dianne Feinstein, the ranking Democrat on Judiciary, and new Sen. Kamala Harris extraordinary sway on California judicial nominees. They could keep the vacancies in political purgatory until a Democratic president comes along.

Such a course would have serious consequences. In Washington, it might prompt the committee’s chairman, Iowa Republican Charles Grassley, to make an end run around the blue states by ending the blue-slip tradition.

Moreover, it would further strain a federal court system in California already groaning under a weighty caseload. That, in turn, could renew talk of reconfiguring the federal courts – specifically, the San Francisco-based 9th U.S. Circuit Court of Appeals that encompasses the western U.S. (to its critics: “the nutty Ninth”).

The last time Republicans had their run of Washington, D.C., a GOP Congress flirted with a scheme to detach California from the rest of the 9th Circuit. How long before a new Congress decides to exile the entire blue coast?

Such is 2017’s irony. Some Californians want a divorce from the nation. But some of the folks they most despise relish the thought of an isolated California – judicially, at least.

Bill Whalen is a Hoover Institution research fellow and former speechwriter for Gov. Pete Wilson. Whalen can be reached at whalenoped@gmail.com.

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