Trump’s transformation of the federal judiciary means the stakes have never been higher in an election than they are for Democrats
by David Smith in Washington
He is 37 and less than 10 years out of law school. He had never tried a case, nor served as co-counsel at trial, when he was tapped last year for America’s federal bench. But he did go on Fox News to push the cause of Brett Kavanaugh when Trump’s supreme court pick was mired in sexual abuse claims two years ago.
And now he is bound for the second highest court in the land.
Conservative Justin Walker’s nomination to serve as circuit judge on the US court of appeals for the District of Columbia circuit, announced by Donald Trump on 3 April, barely caused a ripple in a world transfixed by a deadly pandemic. But it was a wake-up call for Democrats: the fight for the White House and Senate in November will also be a fight for the rule of law.
The Trump administration has brought a laser-like focus to nominating and winning Senate confirmation for 193 judges – two supreme court justices, 51 circuit court judges (a quarter of the total), 138 district court judges and two US court of international trade judges – at a pace unmatched since the presidency of Ronald Reagan.
“I’ve never in my lifetime seen an election whose stakes were higher,” said Laurence Tribe, who was born in 1941 and is a constitutional law professor at Harvard University. “The transformation of the federal judiciary into a series of puppets for a very rightwing ideology will have lasting impact for decades.”
Trump and Mitch McConnell, the Republican majority leader in the Senate, aim to guarantee a long-term conservative skew on decisions that affect millions of people, including abortion rights, environment regulations, gun control, immigration rules and access to healthcare (having failed to overturn Barack Obama’s Affordable Care Act on Capitol Hill, the administration is now trying to do so in the courts).
The new wave of judges is dominated by young white men often rushed through the Senate with little regard for standard procedure. Critics say the chief criterion for selection is no longer experience or qualifications but ideology.
Tribe commented: “He’s appointed one person after another, with the cooperation of of majority leader McConnell and a very supine Senate, who would never have been accepted in the past and are not comparable to those appointed by Republicans in the past.”
The professor added: “Many of them will be there for 30 or 40 years. And so the entire landscape of the federal judiciary as a guard rail against various kinds of abuse and violations of the rule of law has been dramatically weakened for the foreseeable future.”
Progressives cite Walker as a prime example. He has only served as a federal district court judge in Kentucky since October. At the time of his appointment, the American Bar Association, which issues ratings on judicial nominees, said he was not qualified to serve because of his inexperience. ,He was eventually confirmed on a 50-41 vote.
Walker is also a former clerk to Kavanaugh, who was narrowly confirmed to the supreme court after claims of sexual misconduct from decades earlier resurfaced. Walker did 162 media interviews, including 35 on Fox News (“He is a warrior with a backbone of iron”), to defend his mentor, according to the Leadership Conference on Civil and Human Rights.
Christopher Kang, chief counsel for Demand Justice, a progressive advocacy organisation, and who served in the Obama administration for nearly seven years, said: “We’ve seen over the last three years the kinds of judges that President Trump has put in throughout the judiciary, from district courts all the way to the supreme court. They’re younger, more partisan, more political and really having a big impact on the lives of Americans.”
But conservatives disagree with this characterisation. Elizabeth Slattery, a legal fellow at the Heritage Foundation thinktank in Washington, who went to school with Walker in Louisville, Kentucky, said: “It’s true that he’s young and new to the bench, but he had a background as an academic and his research was focused on administrative law and separation of powers. It just so happens the court he’s been nominated to focuses very heavily on administrative law. So I think he’s a great selection because he knows these issues very well.”
Slattery contends that Trump’s selections haves been based on judicial philosophy rather than political ideology. “Many of them are pretty young – a lot are in their 40s – so the expectation is that they will serve on these courts for decades to come,” she said. “It’s perhaps the longest-lasting legacy that any president can have but President Trump has really made this a high priority. Overall, with his selection of judges, he’s hit it out of the park.”
Progressives, however, fear more Justin Walkers waiting in the wings. He is a member of the Federalist Society, which favours an “originalist” interpretation of the constitution and has created a pipeline of young conservative lawyers. Its alliance with Trump has helped him win over Christian evangelicals and other doubters on the right. Many pointed to Trump’s release during the 2016 election of a shortlist of judges for the supreme court vacancy at the time as a political masterstroke that secured their vote.
The courts barely featured in 10 Democratic primary debates. Even so, liberal supreme court justices Ruth Bader Ginsburg and Stephen Breyer will be 87 and 82 respectively at the time of the elections in November.
Joe Biden, the presumptive Democratic nominee, has already committed to putting the first African American woman on the supreme court. But Kang said: “He needs to go a step further and explain literally who are some of the African American women that he’s considering.
“There are a lot of fantastic potential candidates out there who could really help excite progressives about how he would view the courts and how he would seek to restore balance and fairness.”
But the White House alone is not enough. If Biden wins the presidency and Republicans retain control of the Senate, a long war of attrition looms. McConnell refused to sanction a vote on dozens of Obama’s judicial nominees, most infamously his supreme court pick Merrick Garland.
Kang added: “People may focus on McConnell blocking Merrick Garland’s nomination to the supreme court, which was obviously a horrific display of anti-democracy, but what he did in the lower courts is no less appalling. On the circuit courts, over the last two years of President Obama’s term, he only allowed two circuit court judges to be confirmed, which is the fewest since the 1800s.
“And judges overall, even if you include district court judges, was 22, which was the fewest since President Truman. That’s very intentional and I think that’s exactly what we could see if Republicans maintain the majority and there’s a Democratic president.”
This year, 23 Republican Senate seats are up for grabs; Democrats only need to flip four to regain control. Such is the courts’ power to block legislation that much of the Democratic agenda is on the line.
Meagan Hatcher-Mays, director of democracy policy for the Indivisible Project, a progressive grassroots movement, said: “It’s going to be critically important not just to throw Trump out of office this year, but to also flip the Senate so that we can actually move forward with some of our progressive priorities and that includes judges, because pretty much every single piece of progressive legislation that passes through Congress under a Democratic president is going to be challenged in court by Republicans.”
Marge Baker is executive vice-president at People For the American Way, an activist group that has created a web page entitled Vote the Courts 2020 to “identify senators whose confirmation votes for unfit judges prove they don’t deserve to keep their seats”. Baker says: “Progressives, independents, the public understands now in a way they haven’t before the impact that these judges have on their daily lives.
“They understand, frankly, because of the role that Mitch McConnell has played, how critical it is that you have not just a Democratic president, but also a Democratic Senate in order to process these nominations.”
“They see decision after decision, the court rolling back voting rights, putting healthcare at risk, putting reproductive freedom at risk, environmental regulations, workers’ rights – everything that people have come to depend on is being overturned and upended by the courts.”
Such battles are not fought in the supreme court alone. Although Chief Justice John Roberts and colleagues steal the limelight, McConnell himself has noted the importance of the lower courts. Appearing on the Washington Watch podcast with Tony Perkins in April, the majority leader said: “It’s important for your listeners to know that most litigation never makes it to the supreme court.
“Most complex litigation stops at the circuit court level. The level below that is district courts. They’re also important, but their decisions are, of course, appealable to the circuit courts.” ”
Democrats are hoping to convince their own voters on the same point. Should the party take both the White House and Senate, it would be no surprise if two dozen judges appointed by Bill Clinton in the 1990s seek retirement or senior status to make way for younger liberals with decades of service ahead of them. This would be a sign that, after four years of the Trump-McConnell onslaught, the pendulum had begun to swing the other way.
In a news and political cycle usually dominated by instant gratification, victory belongs to whoever can play the long game. Hatcher-Mays of Indivisible said: “I would like to see Democrats be just as aggressive in getting their judicial nominees confirmed as Republicans have been, even if that means not getting Republican support, because the point is these positions are for life.”