President Obama's rule expanding overtime pay to workers making less than $47,476 a year was blocked nationwide Tuesday by a federal judge in Texas, the fourth fifth such nationwide injunction from lower courts in the state in less than two years. Davie Jamieson writes:
The president’s new rule would vastly expand overtime rights for people who work on salary, bringing new protections to an estimated 4 million workers. Businesses were expected to be compliant with the new rule by Dec. 1, but the ruling by a federal court in Texas grants them a reprieve.
To be clear, nationwide injunctions from federal judges are rather extraordinary measures but they have recently become commonplace in the 5th Circuit, where conservative federal judges have routinely used them to block Obama's policies on issues ranging from immigration to transgender bathroom access to federal contracting rules and now overtime pay.
How is it possible that federal judges holding unelected seats are dictating national policy from their benches in Texas? The answer, as I reported here, is that a dearth of federal judges in the circuit has allowed people with a political bone to pick to practically pinpoint conservative judges who will rule in their favor. Naturally, their rulings will be appealed to the 5th Circuit Court of Appeals, arguably the most conservative appellate court in the nation and almost certain to uphold rulings that counter progressive policy no matter how extreme the power grab. And because Senate Republicans have denied President Obama a Supreme Court appointment, if those rulings reach the high court, the justices are likely to deadlock in a 4-4 split, which leaves the lower court rulings and thus the injunction in place. That's exactly what happened with the nationwide hold Judge Andrew Hanen placed on Obama's immigration policy providing deportation relief for up to five million undocumented immigrants.
By choking off the president’s ability to appoint judges both at the top and the bottom, Senate Republicans have created an environment where judges can be practically handpicked to hear certain cases, and the Supreme Court is insufficiently resourced to serve as a proper check on the lower courts.
As of a week before the election, Mitch McConnell and his cronies had only confirmed 22 of Obama's judicial nominees since they took control of the Senate in 2015. Assuming that hasn't changed since the election, here's how it compares to other presidents in their final two years in office. (Note: bolded presidents also served two terms and each of these presidents was countered by a Senate majority held by an opposing party.)
With Donald Trump taking office, conservative judges will be doing less blocking and more affirming of the policies sure to come from the incoming administration. Who knows—maybe Mitch McConnell will even fill some of those 13 vacancies that have created a “judicial emergency” in the 5th Circuit.
But when Republicans start complaining about any effort by Senate Democrats to block GOP policies, just remember what Senate Republicans did in the courts. Just remember that Mitch McConnell only allowed President Obama 22 judicial appointments in his final two years. Just remember that McConnell denied him a Supreme Court appointment. And just remember that the GOP stranglehold on appointees allowed unelected judges in Texas to provide a check on executive power while going completely unchecked themselves.