Over the last month, the Trump administration has advanced its far-right extremist domestic policy agenda, but not only in the way people may have come to expect. No, President Donald Trump did not lay out that agenda in a series of tweets while criticizing National Football League players or attacking the mayor of San Juan, Puerto Rico. He didn’t announce it in another head-scratching press briefing that amounted to word-salad and GIF-worthy reactions from the press. And it didn’t drop with a big Rose Garden ceremony like Trump’s religious imposition executive order. Instead, Trump has solidified the bulk of his anti-civil rights, anti-worker, pro-torture agenda with his judicial nominees, who could hold onto the power of the federal courts for decades to come.
On Thursday, the Senate Judiciary Committee advanced along a party line vote the nominations of Colorado Supreme Court Justice Allison Eid to the Tenth Circuit Court of Appeals and University of Pennsylvania law school professor Stephanos Bibas to the Third Circuit Court of Appeals. Shortly following the Judiciary Committee’s vote, Senate Majority Leader Mitch McConnell (R-KY) announced the full Senate would vote to confirm Eid, Bibas, and two other Trump nominees next week.
Eid is Trump’s pick to replace U.S. Supreme Court Justice Neil Gorsuch on the Tenth Circuit, a generally conservative circuit. The Tenth Circuit is the one that helped paved the way for the Supreme Court’s ruling in Burwell v. Hobby Lobby in favor of secular, for-profit corporations that objected to complying with the Affordable Care Act’s birth control benefit. That ruling came in large part thanks to Gorsuch’s opinion in the case while on he was on the appellate court.
There’s little reason to believe that Eid would be any less of a far-right conservative voice, presuming she’s confirmed by the Senate. In her academic writing, Eid has praised both the decision in United States v. Lopez invalidating the Gun-Free School Zones Act of 1990—which prohibited gun possession in local school zones—as well as United States v. Morrison invalidating part of the Violence Against Women Act that allowed victims of gender-based violence to sue their perpetrators in federal court.
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While on the Colorado Supreme Court, Eid broke ranks with her colleagues and would have ruled in favor of religious institutions receiving state funding being exempted from paying taxes. That case, Catholic Health Initiatives Colorado v. City of Pueblo, involved a Catholic-affiliated retirement home that owed Pueblo, Colorado, more than $22,000 in unpaid sales and use taxes. Catholic Health challenged the assessment, arguing it was exempt as a charitable organization.
The Colorado Supreme Court ruled against Catholic Health, holding that the business was not a charitable organization and was thus not exempt from paying taxes because it was not providing housing services in a free and voluntary manner and charged residents as much as $2,300 a month to stay there. Eid dissented, arguing the decision amounted to endorsing discrimination against religious organizations as compared to other charitable organizations. That kind of rhetoric arose last year in the Supreme Court, when it ruled in favor of a religiously affiliated day care’s right to receive state funding directly in Trinity Lutheran Church of Columbia, Inc. v. Comer. This is an example of Eid and Justice Gorsuch aligning nearly perfectly: In Trinity Lutheran, Gorsuch sided with the religiously affiliated day care, just as he did on the Tenth Circuit with the owners of Hobby Lobby. And just as he did in the Hobby Lobby case at the Tenth Circuit, Gorsuch wrote a concurring opinion stating that the majority’s decision did not go far enough to open taxpayer dollars to directly funding religious institutions.
Presuming she’s confirmed, Eid will serve the same role on the Tenth Circuit Court of Appeals as Gorsuch did, which could have long-term implications for civil rights jurisprudence. Her voting record while on the Colorado Supreme Court, her public writings, and her ideological alignment with Gorsuch make those implications clear.
Then, there is the nomination of Stephanos Bibas to the Third Circuit, another conservative appellate court. Bibas is known as a criminal law expert, but as Sen. Dick Durbin (D-IL) noted in Thursday’s hearing, that reputation should raise some eyebrows given his public statements that in lieu of jailing people for crimes, we should return to other forms of corporal punishment such as the stocks and possible public beatings, depending on the nature of the offense. During Thursday’s hearing Durbin noted that Bibas advanced these arguments at the same time the United States was embroiled in the debate over the Iraq War and so-called “enhanced interrogation techniques.”
It’s hard to imagine Bibas ruling in favor of anyone accusing law enforcement of using excessive force, should the issue land before him while on the bench.
But wait. More judges are on their way.
Amy Coney Barrett is set to be confirmed to the Seventh Circuit Court of Appeals, should McConnell’s promised vote happen next week. This, too, is a critical appointment, given the Seventh Circuit’s mostly moderate track record, ruling against anti-abortion clinic closure laws and businesses that discriminated against LGBTQ employees. With the recent retirement of Judge Richard Posner, Barrett’s confirmation would help tilt the Seventh Circuit to the right.
Judicial nominations typically face questions from the Senate Judiciary Committee as to their underlying records on the bench. But not Barrett. That’s because she has no judicial record. She’s never been a judge. But she’s one Senate vote away from sitting on the Seventh Circuit Court of Appeals.
Not surprisingly, Barrett, a member of the conservative Federalist Society, formerly clerked for late Supreme Court Justice Antonin Scalia. Barrett is a law professor at the University of Notre Dame, where she served until 2016 on University Faculty for Life, a campus organization open to any staff member who believes in fetal “personhood” and opposes medically assisted suicide, sometimes called “death with dignity.” The Seventh Circuit is host to Notre Dame’s case against the birth control benefit.
In addition to her academic work, Barrett’s record on civil rights issues demonstrates a clear bias in favor of religious groups seeking to avoid complying with state and federal nondiscrimination laws. In her public appearances, she has said she believes Roe v. Wade is responsible for “abortion on demand” and that Republicans are “heavily invested” in getting judges on the federal bench that would overturn the landmark U.S. Supreme Court case.
The Senate Judiciary Committee in early October also moved forward with the nomination of Joan Larsen to the Sixth Circuit Court of Appeals. Larsen is a current justice on the Michigan Supreme Court and boasts plenty of conservative credentials of her own. Like Barrett, Larsen clerked for Scalia. She’s a big proponent of expansive executive power with regard to “signing statements,” which presidents make when signing statutes into law. Legal scholars debate over whether those statements have any effect on the meaning of the statute, but for Larsen, they represent an important exercise of executive authority that helps shape the particular law.
Larsen is another dangerous appointment, given her history of favoring attempts to use executive power to usurp legislative lawmaking authority along with Trump’s willingness to rely on executive orders to try to implement policies that the Republican-controlled Congress has been so far unable to pass, such as the various iterations of the Muslim travel ban.
Larsen worked in the U.S. Department of Justice’s Office of Legal Counsel during the George W. Bush administration and was endorsed for the state supreme court by the anti-choice Michigan Right to Life. This endorsement matters because there is a potentially big challenge to Roe v. Wade in the works in the Sixth Circuit, with a Tennessee bill seeking to ban abortions as soon as a physician determines fetal viability, or at 20 weeks. Fetal viability at 20 weeks is hardly a universal truth, as the mainstream medical community has attested. Furthermore the law on its face is an unconstitutional pre-viability ban that is likely a trial balloon as to whether a federal court is willing to accept arguments that fetal viability can begin at conception.
A federal copycat bill is working its way through Congress at the moment which, if passed and challenged, could give Larsen the chance to rule on the constitutionality of such restrictions directly, presuming she is confirmed.
Let’s be clear. All of Trump’s judicial nominations, from U.S. Supreme Court Associate Justice Neil Gorsuch down the line of federal appellate and district court judges, are radical extremists. This latest batch is just another round of Trump’s like-minded nominations, who fall into a predictable pattern. It’s one we’ve seen emerge from the Trump administration generally: Appoint as many people as possible who appear “reasonable” to the public, who may present a “nice person” image even with a history of crafting legal arguments to try and roll back civil rights and protect right-wing evangelical Christians from complying with federal and state nondiscrimination statutes. And they are all about to receive lifetime appointments to the federal bench.