Trump and McConnell’s Political Judges in Wake of Impeachment
During the impeachment trial, Senate Majority Leader Mitch McConnell (R-KY) led the vast majority of Republican senators in conducting an unprecedented cover-up of President Donald Trump’s attempts to solicit foreign interference in U.S. elections. Now that the proceedings have concluded, the Senate has pushed forward Trump’s judicial nominees, many of whom reflect the same disregard for democracy that the majority of Senators demonstrated during impeachment. Many of these nominees have not only extremely partisan backgrounds but also significant records opposing key democratic rights, such as voting rights.
This column details three notable judges selected by Trump for lifetime appointments to the judiciary. While one of these individuals, Andrew Brasher, has already been confirmed, the following are still pending. Any senator who votes to confirm these nominees will also be confirming that their disregard for American democracy matches that of the president.
Andrew Brasher was a top post-impeachment priority for Trump and McConnell. The same afternoon in which the Senate voted on impeachment, McConnell filed cloture to move forward his nomination to the 11th U.S. Circuit Court of Appeals. Brasher was confirmed within a week.
Even with less than 15 years of experience as a lawyer, Brasher was appointed by President Trump to a lifetime seat on the federal district court. Before becoming a judge, he spent the majority of his career in the Alabama Attorney General’s Office, first as deputy solicitor general and then as solicitor general.
During his time in Alabama, Brasher was notable for his strong defense of voter suppression tactics and has repeatedly argued in support of unconstitutional racial gerrymandering practices. In the 2014 case Alabama Legislative Black Caucus v. Alabama, for example, the U.S. Supreme Court rejected his arguments in defense of racially discriminatory maps. And that wasn’t the only time that Brasher has been on the losing side of a Supreme Court decision: In 2013, in another voter suppression case, even the famously conservative late Justice Antonin Scalia rejected Brasher’s position. Additionally, Brasher has argued for unnecessary burdens in litigation that would make it harder for plaintiffs to prove discrimination.
In one case where the Supreme Court did agree with Brasher’s extremist views, the results were devastating. In an amicus brief, Brasher urged the court—which was considering the infamous Shelby County v. Holder case—to strike key provisions of the Voting Rights Act (VRA) designed to prevent discriminatory voting practices in states with histories of voter suppression. After the court gutted the law, Brasher’s state, along with several others, almost immediately announced that it would start to enact laws long recognized for their effect in suppressing the votes of marginalized individuals, including African American and Hispanic voters.
Brasher also has a partisan history. In the midst of his efforts to suppress American voters, Brasher took time to demonstrate loyalty to Donald Trump. In 2016, he worked for Trump’s transition team, helping to coordinate criminal justice policy; three years later, he was nominated to the district court. In the past, Brasher has also worked on other campaigns, including the 2010 gubernatorial campaign of Bradley Byrne (R-AL), another close ally of Trump.
The pending nominee for the U.S. District Court for the Southern District of Mississippi, Cory Wilson, reflects many of Brasher’s worst qualities: He, too, is a partisan whose decisions have consistently undermined basic democratic values. Wilson, however, is even more explicit about his anti-voter and partisan leanings.
As an attorney, Wilson wrote a number of op-eds advocating for voting suppression. In 2012, he dismissed legitimate concerns over discriminatory voter ID laws, saying they were as “phony as the ‘war on women’.” Later that year, in another op-ed, he described then-Attorney General Eric Holder—the first African American attorney general and a voting rights champion—in belittling terms, writing: “Holder whined, like many liberals, that voter ID laws are part of an illegitimate, orchestrated effort by Republicans to suppress poor and minority voting.”
Wilson’s hyperpartisan nature continued during the 2016 election, when he served as a Mississippi state representative. In tweets that mirrored Trump’s own rhetoric, Wilson said: “Felony dumb or willfully ignorant? Troubling read: FBI Data Dump Shows #CrookedClinton Is Criminal and Clueless.” Moreover, in a flagrant display of his lack of respect for the idea of a fair judiciary, Wilson has refused to take down any of his hyperpartisan social media posts during his confirmation process. He is expected to be voted on in March.
Finally, Stephen Vaden—Trump’s nominee for a spot on the U.S. Court of International Trade (CIT)—is yet another example of a judge who not only opposes voting rights but also has a clear political history. Vaden, another young and inexperienced nominee, is the general counsel for Trump’s Department of Agriculture. The seat he is set to fill is a lifetime position, and despite having a specialized subject matter, its members often sit on circuit and district courts and rule on important civil rights cases.
Despite his short career, Vaden has made a name for himself in private practice for his extremely political roster of conservative clients and, in particular, for his work in opposition of voting rights. He has defended voter suppression laws in at least Ohio, Virginia, and North Carolina. When asked by Sen. Diane Feinstein (D-CA), Vaden was unable to provide any examples of times that he has worked to uphold voting rights laws rather than dismantle them. Perhaps most notably, in 2016, he defended North Carolina’s omnibus voter suppression law by filing a brief for Sens. Thom Tillis (R-NC), Lindsey Graham (R-SC), Ted Cruz (R-TX), and Mike Lee (R-UT) as well as a conservative legal organization. The 4th U.S. Circuit Court of Appeals struck down that law—and Vaden’s reasoning—with strong language, describing it as “the most restrictive voting law North Carolina has seen since the era of Jim Crow” in that it targets “African Americans with almost surgical precision.”
Later, as a Trump political appointee at the Department of Agriculture, he took on significant responsibilities despite having virtually no background in the agency’s core work—though he did help Pat Roberts, the chairman of the Senate Agriculture Committee, in his 2014 reelection bid. In the Trump administration, Vaden has engaged in controversial efforts, including attempts to harm tribal lands, and has developed a reputation for abusive behavior toward the department’s career employees. Vaden’s nomination to the CIT appears to be as much of a political favor as was his nomination to the Department of Agriculture: Just as Vaden lacked any expertise in agriculture, he has never practiced international law. Still, Vaden’s nomination is expected to occur in the next several weeks.
Packing the bench with conservative ideologues has been a cornerstone of Trump’s presidency—and part of a plan by McConnell and his conservative allies that stretches back to their efforts to eliminate former President Barack Obama’s appointment power. Trump’s nominees have broken records for being rated “not qualified” by the American Bar Association (ABA), and many have exhibited bizarre and troubling behavior once confirmed to the bench by the Senate. Recently, for example, one Trump appointee attempted to humiliate an LGBTQ person for her gender identity when she appeared in his court. Another—who, during her confirmation hearing, refused to admit that Brown v. Board of Education was correctly decided—filed a dissent laying out a theory of law that experts say would invite a constitutional crisis.
By helping to advance Trump’s most recent crop of brazen political actors toward lifetime appointments, McConnell is proving how willing he is to subvert the legitimacy of the bench in the wake of impeachment. Trump, empowered by the Senate’s subservience, is clearly set to continue to build a bench full of judges who have as little respect for democratic principles as he does. If senators follow McConnell and Trump in stacking the bench with such unqualified appointees, their legacies will continue to be defined by their anti-democratic actions.
Maggie Jo Buchanan is the director of Legal Progress at the Center for American Progress.
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