The United States Court of Appeals for the District of Columbia Circuit court ruled Tuesday that Robert Mueller’s appointment as special counsel is constitutional. This is not good news for Stephen Calabresi, chairman of the Federalist Society’s board of directors, who published a 21-page memo arguing that Mueller’s appointment is unconstitutional. He now looks rather foolish, but it’s far from the first time Calabresi has authored a controversial memo — or been wrong. Think Progress:
Calabresi also authored a later-withdrawn memo arguing that Congress should double or even triple the number of federal appeals court judges after President Trump’s election with the goal of “undoing the judicial legacy of President Barack Obama.”
As a presidential candidate, Trump promised that, if he were elected, “we’re going to have great judges, conservative, all picked by the Federalist Society.” Since Trump took office, the Federalist Society and its executives played a major role in selecting Trump judges — including Trump’s nominees to the Supreme Court.
According to Calabresi, Mueller should count as a principal officer because he “is investigating a large number of people and has already charged defendants with many different kinds of crimes” and “that’s too much power for an inferior officer to have.”
“Only a principal officer, such as a U.S. attorney, can behave the way Mr. Mueller is behaving,” Calabresi incorrectly wrote in a Wall Street Journal op-ed summarizing his argument. (U.S. Attorneys are inferior officers, and a federal statute permits the Attorney General or a federal district court to appoint these officers.)
Make no mistake, whatever ignominy Trump leaves office with, he will leave a lasting legacy for an entire generation, one cobbled together by Mitch McConnell: he will have appointed a vast number of conservative judges, all handpicked and delivered by the right-wing Federalist society. They have already been successful in placing two Supreme Court justices on the bench, Gorsuch and Kavanaugh. Restructuring the federal judiciary is the goal of this administration and the sole reason that McConnell sold the GOP’s soul to Donald Trump to begin with.
So far, McConnell has achieved this goal in a stunning fashion. Trump has already appointed 154 judges. On November 7, 2018 McConnell said, “We intend to keep confirming as many as we possibly can as long as we’re in a position to do so,” which is GOP-speak for, “until we are finally forced to cut bait with Trump for the preservation of the party.”
McConnell’s gambit the last two years of the Obama presidency has paid off. The obstructionist Senate didn’t approve a single judicial nominee of Obama’s, leaving 112 federal judgeship vacancies for Trump to fill, more than twice what Obama had to fill. Had Hillary Clinton been elected, that strategy would have backfired on McConnell big time. But McConnell apparently counted upon the political pendulum swinging back to a Republican victory. And maybe he knew about Russian interference in the 2016 election. Not saying he did, but in the event that he might have, then it would make a lot of sense for him to obstruct all the judicial appointments in the last two years of Obama’s term, and leave the field so fertile and open for Trump.
After the circus sideshow of the Trump administration is long gone and just a laughable walk down memory lane, the awful reality of a stacked ultra conservative judiciary will still be with us. It’s taking place, right now, today. It’s encouraging that the federal court in D.C. ruled that Mueller’s appointment was constitutional. Unfortunately, that ruling signifies two steps forward, one step back and the Federalist Society and McConnell are still ahead of the game.
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