With much of the nation focused on Donald J. Trump’s presidency since he took ofﬁce in January 2017 and, more recently, his impeachment, not nearly enough attention has been paid to his appointment of federal judges, even though one in every four Circuit Court judges was nominated by him, 187 federal judges and two U.S. Supreme Court justices.
The result, The Washington Post has noted, is that Trump “has remade the federal judiciary, ensuring a conservative tilt for decades and cementing his legacy, no matter the outcome of the November elections.” That is because all are lifetime appointees and most are relatively young, including Allison Jones Rushing, who, at 37, is now the youngest federal judge and who is notorious for being anti-LGBT, and Eric Murphy, 39, who is also known for being anti-LGBT and for trying to make it harder for people to vote while he was Ohio’s solicitor general.
Presidents have the right to nominate federal judges, subject to conﬁrmation by the U.S. Senate, who lean towards his or her ideology. But, at the very least, the nominees should be qualiﬁed, especially as determined by their peers, usually the American Bar Association. More recently, presidents have tried to diversify their nominations but Trump’s are mostly white men. He takes his cue not from the ABA but from the Federalist Society, founded in 1982 initially as a student organization but which, in recent years, has been asserting a growing rightwing influence over judicial nominations.
The Society’s executive vice president, Leonard Leo, for two decades, The Post said, “has been on a mission to turn back the clock to a time before the U.S. Supreme Court routinely expanded the government’s authority and endorsed new rights such as abortion and same-sex marriage.” The Post called Leo “an unofﬁcial advisor” to Trump, with good reason. The White House, in a statement in November, said his judicial appointees “will interpret the Constitution as written” and “will protect and honor the Constitution and the rule of law” – as if other judges have not.
Trump has a willing accomplice in Senate Majority Leader Mitch McConnell, who is infamous for holding up President Barack Obama’s Supreme Court nominee Merrick Garland for several months, resulting in Trump’s successfully nomination of Neil Gorsuch. Trump, McConnell and the Republican leadership made the federal bench vacancies a central campaign issue while trying – successfully – to retain control of the Senate in 2018. Most of those vacancies existed because McConnell refused to bring Obama nominees up for consideration but his policy now is to “leave no vacancy behind.” In his rush to conﬁrm even the unqualiﬁed, he curtails the time for debate on a nominee from 30 to two hours.
The example most frequently cited as to nominees entirely unqualiﬁed but still conﬁrmed is former prosecutor Wendy Vitter, who, among other things, Shira A. Scheindlin of The Guardian reported, “routinely sought the toughest sentences against black defendants – including the death penalty – but not equally against white defendants.” Prior to her conﬁrmation to the federal bench, Vitter had appeared in federal court only once.
Scheindlin predicted that Trump’s appointments “will do lasting damage,” according to the headline on her May 31, 2018, column. But HuffPost’s Jennifer Bendery, commenting in March on McConnell’s “warp speed” conﬁrmation process, said that he is “mostly replacing older Republicanappointed judges with younger ones.” She added that “the current balance of GOP-vs-Democratic appointed judges on these courts isn’t likely to look much different by the end of Trump’s term.”
That will change if Trump is reelected and the Republicans keep the Senate. The president would be able to ﬁll additional federal vacancies and perhaps name another two additional conservative Supreme Court members to succeed two liberal justices, Stephen Breyer, now 80, and the ailing Ruth Bader Ginsburg, 86, who could retire in a year or so. This should be a signiﬁcant election campaign issue for Democrats but, as happened in 2016, it is not.
Even as it is, Trump and the rightwing elite already have enough control of the federal judiciary to realize much of their agenda dating back perhaps 75 years: curtailing laws which have expanded the rights of Americans and putting the rich more ﬁrmly in control of the country, with success already achieved in immigration and refugee policies and reversal of most Obama regulations. The real prize, though, are social programs such as Medicaid and Medicare and Social Security, the Affordable Care Act, and abortion rights.
As Nancy McClean reported in her book “Democracy in Chains”, the wealthy class realized that they could not succeed through national elections and therefore resort to gerrymander voting districts to give them control of state legislatures to accomplish, at the state level, what they cannot do nationally. The driving force behind this strategy is the American Legislative Exchange Council (ALEC), which is coordinating frontal attacks on many hard-won rights of Americans, among them LGBT rights and voting rights.
The courts are the next stage of this planned takeover of the levers of power, bypassing the will of the people. Favorite rightwing issues are being pushed to the courts, where increasingly sympathetic judges rule in their favor. Now wonder McConnell is conﬁrming judicial nominees at “warp speed.”