Andrew McCarthy of The National Review's The Corner is worried about President Obama's judicial nominees. His concern is twofold: too many of them are being confirmed, and if confirmed, one or more of them might rule what he views as the "wrong" way in the current, right-wing media promoted dispute over contraceptive coverage.
McCarthy really should cheer up with respect to the first point. While he bemoans the supposed "disinclination of senate Republicans to block appointees," Republicans have actually been quite inclined to obstruct president Obama's judicial nominees. The fact is that while the Senate has confirmed 125 of President Obama's district court and court of appeals nominees, at the same point in President George W. Bush's first term 170 of Bush's lower court nominees had been confirmed. Republican obstruction has been so successful that the agency that administers the federal courts system has identified 33 judicial emergencies, in which unfilled vacancies have resulted in extremely high caseloads per judge on certain courts.
The extent of Republican obstruction is illustrated by the recent example of Judge Adalberto Jordán. Although Judge Jordán possessed a distinguished record as a district court judge and enjoyed the support of his home-state senators (including Republican Marco Rubio) and a unanimous vote to advance his nomination in the Senate Judiciary Committee, his nomination to the U.S. Court of Appeals for the 11th Circuit languished for four months before Senate Republicans finally permitted a vote on February 15th.
As for the second point, McCarthy is right to be nervous that judges, regardless of the president by whom they were nominated, will reject his claim that the Obama Administration's regulations requiring employers to provide contraceptive coverage to their employees is unconstitutional. As New York Times columnist Linda Greenhouse has observed:
What [Catholic institutions who oppose the regulations] now claim is a right to special treatment: to conscience that trumps law.
But in fact, that is not a principle that our legal system embraces. Just ask Alfred Smith and Galen Black, two members of the Native American Church who were fired from their state jobs in Oregon for using the illegal hallucinogen peyote in a religious ceremony and who were then deemed ineligible for unemployment compensation because they had lost their jobs for "misconduct." They argued that their First Amendment right to free exercise of religion trumped the state's unemployment law.
In a 1990 decision, Employment Division v. Smith, the Supreme Court disagreed. Even a sincere religious motivation, in the absence of some special circumstance like proof of government animus, does not merit exemption from a "valid and neutral law of general applicability," the court held. Justice Antonin Scalia wrote the opinion, which was joined by, among others, the notoriously left wing Chief Justice William H. Rehnquist.