The Republican Takeover of the Federal Courts Should Terrify You

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Analysis Law and Policy

The Republican Takeover of the Federal Courts Should Terrify You

Imani Gandy & Jessica Mason Pieklo

These judges, many of whom are young and wildly unqualified, have been appointed to the bench for life.

The Republican Party’s takeover of the federal judiciary is almost complete.

The strategy, executed to near-perfection by Senate Republicans like Mitch McConnell and Chuck Grassley, was simple: Stall as many nominees chosen by President Barack Obama as possible. Then, by either disregarding or outright changing the Senate rules governing the confirmation process, rush through President Donald Trump’s nominees.

So far, that strategy has worked. Trump has already appointed two Supreme Court justices—though one of those appointments was rightfully Obama’s—along with a fifth of the sitting circuit court of appeals judges. Now, Republicans have set their sights on the district courts. There are more than 100 vacancies left, and monied interests are champing at the bit to handpick Trump’s nominations to fill them.

At the beginning of the month, McConnell invoked the “nuclear option” to permanently limit the amount of time senators can debate most nominees from 30 hours to just two. The change doesn’t apply to Supreme Court nominees or circuit court nominees but will allow Republicans to advance district court nominees at lightning speed. And the result will likely be disastrous for progressive causes.

Roe has collapsed in Texas, and that's just the beginning.

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District court judges are on the front lines of federal court litigation. They are the trial judges who decide, for example, whether anti-choice restrictions designed to close abortion clinics can be allowed to take effect while those restrictions are challenged in court. A district court judge issues factual findings in litigation that circuit courts consider on appeal. This latest move by McConnell all but ensures that judges hostile to causes like voting rights, reproductive rights, and LGBTQ equality will help shape the law around those issues.

Trump commented on the phenomenon last March, seemingly confused as to how he got so lucky.

“When I got in, we had over 100 federal judges that weren’t appointed. I don’t know why Obama left that. It was like a big, beautiful present to all of us. Why the hell did he leave that?” Trump asked.

“It was like the gift from heaven. We were left judges,” Trump continued. “They are the ones that judge all your disputes. They judge on what’s fair on the environment and what’s not fair. Where they’re going to take your farms and factories away and where they’re not.”

It wasn’t a gift from heaven, however. It was a gift from McConnell and Grassley—who, after Republicans wrestled control of the Senate from Democrats in 2014, immediately ground to a halt Obama’s efforts to confirm judicial nominees to make way for the next Republican president. That president turned out to be Trump.

Alliance for Justice, a progressive judicial advocacy group, analyzed the devastating impact Trump has already had on the federal judiciary in a recent report. It’s terrifying. Most of Trump’s picks are white men committed to the destruction of federal agencies, the disenfranchisement of people of color and other reliably Democratic voters, the rollback of consumers’ right to hold corporations accountable when they harm people, and the decimation of civil and human rights—including the right to abortion care. And many of them are incompetent: In fact, Trump has nominated more judges deemed “unqualified” by the American Bar Association than any other president at this stage in their administration.

If that doesn’t scare you, it should.

Some data should put it into perspective. As of April 1, 2019, more than 75 percent of Trump’s nominees were men and more than 90 percent were white. By contrast, 58 percent of Obama’s nominees were men, and 64 percent were white.

Trump has appointed around a third of the judges on the conservative Fifth, Seventh, and Eighth Circuits. He’s on the verge of flipping the reliably liberal Ninth Circuit. The Third and 11th Circuits were both majority-Democrat until Trump. Now the majority of the judges on the Third Circuit are Republican; the Eleventh Circuit is evenly split between Democrats and Republicans.

You may be thinking to yourself, “So what? It is expected that Republicans will appoint conservative jurists, while Democrats will appoint more liberal jurists.”

The problem isn’t just that Trump is appointing conservative judges. It’s that he’s appointing conservative judges who are handpicked and vetted by the Federalist Society, which Meagan Hatcher-Mays describes as “a shadowy conservative group that mobilized in the years after the Supreme Court’s historic decision in Roe v. Wade.”

“The organization grooms law students to become hardliner anti-choice judges who oppose reproductive rights and the social safety net but support wholesale deregulation and unfettered personhood rights for corporations,” Hatcher-Mays continues. “These are not neutral judges who ‘follow the law’ or umpires who call ‘balls and strikes,’ as they frequently claim in their confirmation hearings. They are partisan hacks who are hand-selected by billionaires to stand in the way of progress.”

In other words, these are judges who oppose progressive values as a matter of principle. There’s no adherence to the rule of law, only adherence to the monied interests that control the appointment process.

The Sixth Circuit Court of Appeals is a perfect example of Trump’s effect on the courts. Once considered a center-right circuit, the Sixth Circuit has, thanks to Trump appointments, swung hard in the conservative direction. The Sixth Circuit is the court that recently ruled in Planned Parenthood of Greater Ohio v. Hodges that the state of Ohio could refuse to provide public money to Planned Parenthood to pay for health-care programs unrelated to abortion.

The district court blocked the law in August 2016. A three-judge panel of the Sixth Circuit upheld that ruling in April 2018. But on March 12 of this year, the full court ruled 11-6 to reverse it—with Trump appointees providing four of those 11 votes.

Writing for the majority, George W. Bush appointee Jeffrey Sutton ruled, remarkably, that abortion providers do not have a due process right to perform abortions, ignoring that the rights of abortion providers are and have always been derivative of the rights of their patients. (A pregnant person’s due process right to an abortion means nothing if there’s no provider to perform it, and courts have repeatedly recognized that.) Trump appointees Amul Thapar, John K. Bush, John B. Nalbandian, and Joan Larsen, of course, sided with the majority. Eric Murphy, who was not yet installed on the court, would almost surely have sided with the majority; after all, as Ohio’s attorney general, he argued before the Sixth Circuit on behalf of the law. Chad Readler, confirmed on March 6, would have undoubtedly done the same.

And earlier this month, Trump loyalist John K. Bush wrote the decision reversing a lower court ruling blocking Kentucky’s forced ultrasound law, HB 2. The reasoning behind Bush’s decision is so garbled that Judge Bernice Bouie Donald declared, “I dissent!” Not “I respectfully dissent,” which is usually how judges phrase their dissents as a matter of decorum. Just “I dissent!” Exclamation mark.

But it hasn’t stopped there. Trump’s appointees to the Sixth Circuit have advanced regressive right-wing arguments and causes in multiple respects.

Eric Murphy derided Sonia Sotomayor’s epic dissent in Utah v. Strieff, according to an Alliance for Justice nominee report. In that dissent, Sotomayor connected the Court’s ruling—that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violations of a person’s Fourth Amendment rights—to larger issues regarding overpolicing of communities of color. Murphy criticized Sotomayor for focusing too much on racial justice, according to the report, and noted that the defendant in the case was white. He also defended in a brief to the Supreme Court Ohio’s prohibition on same-sex marriage in Obergefell v. Hodges, and joined an amicus brief backing the Gloucester County School Board in Gavin Grimm’s lawsuit challenging his high school’s policy prohibiting him from using the bathroom that aligns with his gender identity.

Chad Readler, meanwhile, argued in favor of some of the Trump administration’s worst policies when he was acting head of the U.S. Department of Justice Civil Division: He defended the administration’s efforts to prohibit undocumented pregnant minors from obtaining abortion care; Trump’s child separation policy and the indefinite detention of migrant children; the denial of food and showers for detained migrants; and Trump’s transgender military ban. If all that’s not bad enough, he has also written in favor of the death penalty for 16- and 17-year old children.

John K. Bush—who wrote the decision upholding Kentucky’s ultrasound law—has compared abortion to slavery (abortion is nothing like slavery); has criticized the State Department for its decision to modify passport application forms to account for same-sex parents; and has cited websites on his blog that have promoted conspiracy theories about Obama being born in Africa.

Joan Larsen has voiced her objection to Lawrence v. Texas (the landmark case striking down sodomy laws) and criticized the DOJ for not defending the constitutionality of the Defense of Marriage Act. John B. Nalbandian defended Indiana’s discriminatory voter ID law in an amicus brief to the Supreme Court and acted to restrict voting rights in Ohio. And Amul Thapar rejected a worker’s same-sex harassment and retaliation claims, arguing that the victim must be required to produce “credible evidence” of the harasser’s sexual orientation.

The Sixth Circuit should serve as an indicator of what’s to come for the federal district courts.

McConnell is seemingly on a mission to reshape the judiciary for a generation. He’s already moving quickly: At the end of Obama’s first two years, the Senate Judiciary Committee had confirmed two Supreme Court justices and 16 appellate judges. By the end of Trump’s first two years, after McConnell famously refused to allow a vote on Merrick Garland—Obama’s pick to replace Antonin Scalia—the committee confirmed Neil Gorsuch to take Scalia’s place and then Brett Kavanaugh in a confirmation process that was fraught with irregularities. As for appellate judges, the committee had confirmed 30 loyalists by the end of Trump’s first two years. As of April 1, that number has risen to 37.

Even if Trump only lasts one term, the damage he has done to the federal judiciary is practically irreversible. These judges, many of whom are young and wildly unqualified, have been appointed to the bench for life barring an extremely rare impeachment. Unlike many of the regressive policies that Trump has implemented via executive order, these appointments cannot be otherwise undone. And that’s something we will have to live with for a generation.