The judiciary is meant to be an independent check on the legislative and executive branches of the government—impartial and insulated from politics. In the Trump administration, however, it is clear that something is amiss. Many of the president’s judicial nominees are associated with the furthest right wings of the conservative movement and have demonstrated support for the conservative political agenda.
Conservatives are attempting to reshape the nation’s judiciary
Most prominent among President Donald Trump’s judicial picks is U.S. Supreme Court Justice Neil Gorsuch, whom conservatives tout as a symbol of their recent successes. Justice Gorsuch surprised some pundits with his rulings in cases involving marriage equality, the president’s Muslim ban, and other issues—siding with U.S Supreme Court Justice Clarence Thomas, long considered the most conservative justice, in every case.
While the confirmation of a new Supreme Court justice might be seen by some as Senate Majority Leader Mitch McConnell’s (R-KY) crowning achievement this year, Justice Gorsuch was not Sen. McConnell’s hand-picked nominee. That distinction belongs to U.S. Circuit Judge John K. Bush, an avid political blogger and right-wing extremist whose wife helped raise $14 million for McConnell’s 2014 re-election campaign. Judge Bush approached Sen. McConnell after President Trump was elected to ask about becoming a federal judge, and McConnell recommended him to the administration.
Although Bush received a glowing introduction from McConnell at his Senate Judiciary Committee hearing, he received sharp criticism from both Democratic and Republican senators. Among other concerns, Judge Bush was rebuked for a blog post comparing Roe v. Wade to the infamous, pro-slavery Dred Scott v. Sandford case. And his posts propagating “birtherism,” the racist myth that former President Barack Obama was born in Kenya, drew the most criticism: Bush cited WorldNetDaily, a known source of false news stories, in support of his views, which led many senators to question his judgment. Bush was also criticized for his work on a lawsuit attacking a campaign finance law and for a brief defending the Virginia Military Institute’s former male-only admissions policy. In the brief, he argued that the education offered by the school “does not appear to be compatible with the somewhat different developmental needs of most young women.” Yet he was confirmed in a party-line vote to a lifetime seat on the 6th U.S. Circuit Court of Appeals, one step below the Supreme Court.
Using the courts to uphold discriminatory laws
Such nominations raise the concern that the Trump administration wants to appoint judges who will rubber-stamp its anti-civil rights agenda. In July, for example, President Trump nominated Stephen Schwartz to the U.S. Court of Federal Claims. According to the Alliance for Justice, Schwartz “has focused on attacking critical legal protections for women, immigrants, transgender youth, and people of color.” Trump also recently nominated Thomas Farr to a District Court in North Carolina, despite his record of defending the North Carolina Legislature’s voter suppression agenda, including a bill that a federal court said targeted African American voters “with almost surgical precision.” Both of these nominees have strong records of defending discriminatory laws that have been struck down by the courts. Putting them on the federal judiciary could eliminate a crucial check on harmful legislation.
Reshaping the judiciary could be the Trump administration’s biggest political achievement. But so far, it has only been able to realize this achievement by subverting all norms pertaining to judges’ appointments and confirmations. The Senate, for example, was forced to eliminate the filibuster in order to confirm Justice Gorsuch. The blue slip, a century-old procedural rule asking senators for their consent on judicial nominees from their states, could be disregarded by Senate leaders, eliminating a potential check on the president’s ability to influence the courts for decades to come. Breaking from past presidents, Trump has already refused to consult with Democratic home-state senators on nominations. Instead, his administration has looked to conservative groups such as the Heritage Foundation and the Federalist Society, who have offered the names of extreme right-wing ideologues.
Chief Justice John Roberts has said that “judges are not politicians.” But some conservatives seemed to place Judge Gorsuch in the role of a political figure after his nomination. The conservative Judicial Crisis Network ran ads supporting Gorsuch that sounded like campaign ads—a humble-roots narrative about his background as a “hard worker” who “ran a paper route, shoveled snow, [and] worked the night shift.” The Judicial Crisis Network is now spending hundreds of thousands of dollars on ads calling on Democratic senators to submit blue slips approving Trump’s nominees. Over the past decade, the group has also spent millions of dollars shaping state courts by running attack ads in judicial elections.
The right-wing political establishment seems determined to reshape the judiciary. The most recent nominees are not just ideologues; many of them are patently unqualified for lifetime positions on the federal bench. Judges, first and foremost, are meant to be impartial arbiters of the law. With the nominees that President Trump has put forward, that role is in jeopardy.
Zachary Winkler is a former intern with the Legal Progress team at the Center for American Progress.
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