The Myth of 'Captured Courts' | Opinion

In the wake of our national upheaval over the devastating effects of the coronavirus and police brutality, partisan politics has continued unabated in America's grand capital. While talks of relief bills and criminal justice reform fill the airwaves, another destructive issue continues to wreak havoc in the shadows: the delegitimization of our courts. Specifically, the issue is the delegitimization of the judges appointed by the U.S. Senate, which is currently controlled by a Republican majority.

Democrats recently released what they are calling the "Courts Report." In reality, however, it's anything but a report. It's a partisan screed that baselessly accuses the Republicans of neglecting their legislative duties to "aggressively remake the federal courts and rewrite the Constitution." By attacking the current court system through a groundless partisan lens, Democrats are seemingly trying to turn the most trusted branch of government into a political weapon. This is a dangerous game that can't be tolerated.

Sure, over the last three years, the Republican-led Senate has indeed appointed over 200 federal judges across the country. Approving judicial nominees is part of the Senate's job.

It was part of the job when Democrats held the Senate in the Harry Reid years (2007 to 2015), and also under George Byrd (1989 to 1995). It was definitely that way under Lyndon Johnson, Mike Mansfield, and Robert Byrd (1955 to 1981). And it was unquestionably part of the job during the FDR years, with Joseph Robinson and Alben Barkley (1933 to 1947). The fact is that the party in power has always driven the upper chamber's agenda, with roadblocks like the filibuster and supermajority also ensuring the minority party's ability to influence decisions.

That is, until the Democrats undid it all.

In November 2013, with help from the left-leaning American Constitution Society, then-Majority Leader Harry Reid issued the "nuclear option," which eliminated the filibuster for presidential nominees and executive branch appointments. Reid took this action at a time when Republicans were being more than fair, approving over 90 percent of President Obama's nominees. Many observers criticized the move, at the time, as creating a dangerous precedent. Now, with the same rules in place today and a Republican Senate at the helm, Democrats find themselves ill-equipped to stop the appointment of judges they dislike.

Instead of recognizing the consequences of their own party's actions, the authors of the "Court Report"—Senators Debbie Stabenow (D-MI), Chuck Schumer (D-NY) and Sheldon Whitehouse (D-RI)—have blamed the "court stacking" on a multi-decade influence campaign led by the likes of the Federalist Society and Koch network. This reckless allegation, in the form of a "report," seems designed to delegitimize our honorable court system.

Let's be clear. No third-party group created a desire for these nominees to pursue law degrees in their youth. No secret society created vacancies that need filling all over the country. As mentioned earlier, it was the left-leaning American Constitution Society—which is curiously not mentioned anywhere in the report—and not the Koch network, which pushed Harry Reid to drop the supermajority filibuster protection. And it definitely wasn't the Federalist Society that voted Democrats out of office in 2016.

U.S. Supreme Court
U.S. Supreme Court Chip Somodevilla/Getty Images

All these complaints have arisen because Democrats aren't currently in the driver seat. But the effects they can have on the public trust in a vital institution are dangerous.

Distorting facts to make the courts seem partisan hurts the country's faith in the judicial branch. The best example of this distortion, at the level of the Supreme Court, is the "partisan 5-4 ruling" canard. Left-leaning politicians consistently bring up this claim, even though over 80 percent of cases end up with more than five votes. The majority of decisions aren't based on a partisan split because that's not how the Court operates.

There is a great deal of respect among colleagues of different ideological backgrounds behind the bench. Justices Antonin Scalia and Ruth Bader Ginsburg were a very famous example of different-minded people who nonetheless highly regarded one another while serving as colleagues. That can all change in the decades ahead if Democrats in Congress succeed in delegitimizing all those nominated under this current Congress.

Our courts play a vital role in the health of our country. They settle disputes and protect against government tyranny. To say that every judge is "good," or that the system is "perfect," would be incorrect. But by pushing hyper-politicized conspiracies, courts' ability to do their job is greatly diminished.

This is already a time of great division in our country. As Americans fight for civil justice and equality, it's essential they have trusted courts to deliver fair and impartial decisions. By pushing these baseless claims, Democrats harm the courts' ability to provide justice, thus hurting the public's ability to receive it. Our officials should keep politics to the politicians and leave judges out of their fight.

America deserves better.

Terry Campo was a counsel to the U.S. Senate Judiciary Committee and later the general counsel to Senator Charles E. Grassley (R-IA).

The views expressed in this article are the writer's own.