Senate Judiciary Committee Spits in Face of Tradition to Push the Courts Further to the Right

Kyle Duncan and David Stras are ultra-conservative judges who will probably land in the Fifth and Eighth Circuit courts of appeals, respectively.

Kyle Duncan is a private lawyer and former general counsel of the Becket Fund for Religious Liberty, the conservative legal advocacy organization advocating for such causes as “traditional marriage” and corporate religious rights. NOLA.com / YouTube

The Senate Judiciary Committee (SJC) broke with a 100-year-old tradition when it held confirmation hearings last Tuesday for Kyle Duncan and David Stras. Duncan and Stras are ultra-conservative judges who will probably land in the Fifth and Eighth Circuit courts of appeals, respectively, because: Trump picked them, Sen. Chuck Grassley (R-IA) is a hypocrite, Democrats have no real power anymore, and there is no God.

The fact that these hearings took place at all is infuriating.

For more than a century, senators have used a process known as “blue slips” to voice their approval of judicial nominees. The idea is that a senator should have a say in the nomination of judges that will serve in their state. According to the Leadership Conference, a civil rights organization led by former U.S. Department of Justice Civil Rights Division head honcho Vanita Gupta, “No president will be compelled to listen to the advice of home state senators” if the SJC allows nominees to advance absent blue slips from home-state senators.

But that’s exactly what’s happened with these hearings.

The blue slip process is an important Senate tradition. In fact, since 1979, only three nominees have been confirmed despite blue slip objection, according to a congressional report. (Interestingly, one of them was Vaughn Walker, the Northern California district court judge who presided over the Prop 8 case that ultimately led to the legalization of same-sex marriage in the state. We have the then-head of the Senate Judiciary Committee, Sen. Joe Biden, to thank for that one.)

During the Obama golden years—Come back, Barack!—Republican senators refused to turn in their blue slips, thus stalling the nominations of dozens of the president’s picks. Democrats basically accepted this as the way things work in Washington. They did a lot of finger wagging and gnashing of teeth, but not much in the way of pushing nominees through.

But suddenly, now that the GOP is in control of the three branches of government, all those checks and balances in place to ensure that the president can’t just appoint whomever he wants to the bench are as nonexistent as Republican concerns over Russia owning Trump.

Sen. Al Franken (D-MN) said that he would not be turning in his blue slip on Stras due to Stras’ conservative ideology. And in Louisiana, Sen. John Kennedy (R-LA) turned in his blue slip on Kyle Duncan, but indicated on the slip that he was undecided about Duncan’s nomination, according to a Politico report.

But Chuck Grassley, head of the SJC, decided to proceed with the hearings on Duncan and Stras anyway—a move that he would surely have criticized, had it occurred on Obama’s watch. Still, he appears to have no qualms about pulling rules out of nowhere to ensure that Trump can pack the courts with right-wing ideologues.

And this is far from the first dodgy maneuver congressional Republicans have made to push the judiciary in their favor. Remember Merrick Garland? Obama tapped him to replace Justice Antonin Scalia after Scalia laid down for his permanent dirt nap in February 2016. Fearful that replacing Scalia with a moderate like Garland would tip the Supreme Court scales too far in favor of the liberal wing, Senate Majority Leader Mitch McConnell (R-KY) decided that even though President Obama had almost a full year before his term was up, we had a duty to wait for the next president to pick Scalia’s replacement.

Republicans essentially stole a seat from Democrats and now are shutting them out of the process regarding the rest of the federal appeals court judicial nominations. Although that’s partly Democrats’ fault, since during Obama’s tenure, Nevada’s then-Sen. Harry Reid deployed the so-called nuclear option, which meant that all judicial vacancies—except for the Supreme Court—could advance with a simple majority of 51 votes. That decision is now haunting Democrats.

And it couldn’t happen at a worse time, because Trump has continued to nominate a panoply of right-wing conservatives who are hostile to LGBTQ rights, reproductive rights, and immigration rights.

Take Kyle Duncan, for example.

Duncan is a private lawyer and former general counsel of the Becket Fund for Religious Liberty, the conservative legal advocacy organization advocating for such causes as “traditional marriage” and corporate religious rights, among others.

Duncan is perhaps best known for representing Hobby Lobby in the landmark 2014 U.S. Supreme Court case that granted closely held corporations religious objection rights to Obamacare’s birth control benefit—and potentially, to a host of other issues under the Religious Freedom Restoration Act.

In 2014 Duncan also represented Louisiana Health and Hospitals Secretary Kathy Kliebert on a case related to the state’s blocked admitting privileges law.

And let’s look at Duncan’s record on LGBTQ rights: He opposes marriage equality and adoption by same-sex couples, and thinks forcing trans folks to use bathrooms that don’t align with their gender identity is hunky dory. He defended the state of Louisiana’s ban on marriage equality in Robicheaux v. Caldwell before the Fifth Circuit. After the Supreme Court struck down same-sex marriage bans as unconstitutional in Obergefell v. Hodges, Duncan derided the decision as an “abject failure.”

As counsel of record in Gloucester County School Board v. G.G., Duncan represented public school officials of Gloucester County, Virginia, in their legal quest to prevent transgender student Gavin Grimm from using the bathroom that corresponded with his gender identity. “The difficulty in this case is the inflexible position that the Justice Department is taking, where the Justice Department says you have to reinterpret what sex means in Title IX to include gender identity and really to let gender identity trump all other considerations of sex and privacy,” Duncan said during an NPR interview.

Duncan also defended North Carolina lawmakers in connection with the now-kinda-sorta-repealed HB 2, which banned transgender people from using the bathrooms that correspond with their gender identity.

By January 2017, Duncan returned to his anti-choice roots, defending Louisiana’s targeted regulation of abortion providers, or TRAP laws, under the anti-choice Democratic Louisiana Gov. John Bel Edwards. And by 2018, smart money is on Duncan being a lifetime appointee to the Fifth Circuit.

Now let’s turn to Minnesota Supreme Court justice and nominee to the Eighth Circuit Court of Appeals David Stras.

Stras has all the credentials that make the far right’s heart go pitter-patter. He clerked for Supreme Court Associate Justice Clarence Thomas. He has openly praised both Justices Antonin Scalia and Samuel Alito. He’s a card-carrying member of the Federalist Society. He is still chapped that Robert Bork didn’t get confirmed to the Supreme Court and Anthony Kennedy did. Oh. And he doesn’t like Justice Sonia Sotomayor either. In 2009, he said of her nomination, “President Obama could have done so much better,” and questioned whether Sotomayor believed what she said during her testimony before the SJC.

So what has Stras accomplished while on the Minnesota Supreme Court? He’s ruled against a sexual assault survivor in State v. Obeta, arguing the Minnesota Supreme Court didn’t have the power to review a lower court’s decision to keep out expert testimony to rebut the defendant’s claim that the sex was consensual. He’s sided in favor of Republican activists’ attempt to put a Voter ID initiative on the 2008 ballot even though nobody could really understand what the ballot initiative said. Except for the Voter ID part. That was enough for Stras. He even has a history of siding against kids hurt in a horrible bus accident.

In short, Stras is a real peach.

Stras and Duncan aren’t the only staunch conservatives who, if confirmed, could shape the federal judiciary for a generation. Trump has additional nominees—like Leonard Grasz and Don Willett—who are just as horrific, especially when it comes to key civil and human rights like LGBTQ equality and reproductive autonomy.

And given the number of vacancies left after Obama left office—thanks to the abject refusal of Mitch McConnell and his cronies to budge on the vast majority of Obama’s judicial appointments—Republicans have the opportunity to reshape the federal judiciary in their image.

We could be living in an era of balanced courts with liberal, centrist, and conservative judges. But instead, we will soon be living in an era of radical right-wing ones, where civil rights mean nothing.