Each month, Rewire.News is examining the Trump judges behind some of the worst decisions in recent weeks. Read last month’s column here.
With 22 percent of federal judgeships now held by Trump appointees, the effects of the president’s time in office will be felt for at least a generation. President Trump is so committed to getting his nominees confirmed that he threatened to forcibly adjourn the U.S. Congress during the coronavirus pandemic.
That didn’t happen: The U.S. Senate has not adjourned during the public health crisis, instead holding pro forma sessions in which one member opens, then adjourns, every few days. And since the Senate never technically adjourns, the president can’t make recess appointments. (During a Senate recess, the president is allowed to appoint judges without a confirmation hearing.)
Ultimately, however, Trump doesn’t need to force an adjournment. Instead, Sen. Mitch McConnell (R-KY) has ensured the Senate Judiciary Committee continues to meet and churn through nominations, filling the federal judiciary with right-wing ideologues.
Roe has collapsed and Texas is in chaos.
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This month, we look at Jonathan Kobes, an unqualified Trump appointee to the increasingly conservative United States Court of Appeals for the Eighth Circuit. Kobes recently sided with a police officer who shot an unarmed man in Arkansas.
Then there’s Cory Wilson, a judge on the Mississippi court of appeals who has been tapped to serve on the U.S. Court of Appeals for the Fifth District. His nomination, like that of many Trump judges, is being rushed through the Republican-controlled Senate.
We’ll also check back in with Elizabeth Branch, who we first profiled in April for a dissent that proposed gutting the Voting Rights Act, and take a look at her 11th Circuit colleague Kevin Newsom.
Jonathan Kobes, Eighth Circuit
The American Bar Association gave Kobes a “not qualified” rating before his confirmation in 2018, out of concern that he lacked the expected appellate experience. He’s hostile to both LGBTQ and reproductive rights.
And most recently, Kobes demonstrated a willingness to allow police to get away with using unnecessary force without consequence.
Two months ago, Kobes wrote the majority opinion in Goffin v. Ashcraft, holding that a police officer had qualified immunity for shooting Davdrin Goffin, a Black man, in the back as he ran away, even after the officer had conducted a pat-down search and found no weapons on Goffin. “Qualified immunity” is a judicial doctrine that excuses government officials—not just police—from personal liability unless they violate “clearly established” law. But unless a near-identical case has previously been heard, courts usually conclude that the law wasn’t “clearly established” and the officer thus could not have known they were in violation.
Here, Goffin’s counsel argued that Goffin had a clearly established right not to have deadly force used against him when he posed no threat to the officers. After all, the cops had not found weapons on him.
But Kobes found that Officer Robbie Ashcraft could not have known that shooting someone in the back as they were running away—a person they believed had no weapons and therefore posed no danger—violated any law. Writing for the majority, Kobes said “it is not clearly established that after observing a pat down that removes nothing from a suspect who an officer reasonably believed to be armed and dangerous, an officer cannot use lethal force against that suspect when he flees and moves as though he is reaching for a weapon.”
Since no previous case fit this exact fact pattern, Kobes held Ashcraft couldn’t have known she wasn’t allowed to shoot someone in the back as he was running away. This mindset will almost always excuse the behavior of police officers, which is why there is a concerted effort to hold police accountable for their actions by ending qualified immunity.
Cory Wilson, Fifth Circuit nominee
Wilson was initially nominated for a seat on the federal district court in Mississippi, but then Trump withdrew the nomination this year and tapped him to serve on the ultra-conservative U.S. Court of Appeals for the Fifth Circuit instead. On Thursday, the Senate Judiciary approved his nomination in a party-line vote.
The judge has a long history of inflammatory right-wing comments, including complaining about the “War on Christmas” and investments in solar power. But where Wilson has really made his mark is working to undermine access to health care—particularly reproductive health.
As a Mississippi state legislator, Wilson reliably voted in favor of anti-choice bills, including a near-total abortion ban and a 15-week abortion ban. He voted to defund Planned Parenthood and prosecute doctors who support abortion. As a candidate, he indicated that he supported a “complete and immediate reversal” of Roe v. Wade.
When asked about this history during the nomination process for the federal district court judgeship, Wilson said he saw the role of judge and politician as different and that “personal preferences, policy views, policy preferences” are not “a legitimate part of judging.” He refused to address whether he would apply the settled precedent of Roe, saying only that he would not comment on any case that could come before him.
Wilson has opined on the Affordable Care Act (ACA), writing a 2014 op-ed calling it “big, intrusive government.” He called for the U.S. Supreme Court to strike down the law “for the sake of the Constitution.”
Wilson’s nomination isn’t just opposed by reproductive health organizations like Planned Parenthood. The NAACP opposes his nomination, given his record on voting rights. As Mississippi’s deputy secretary of state, Wilson supported discriminatory voter ID laws and later mocked the very concept of “voter suppression.”
The Human Rights Campaign called on the Senate to reject Wilson’s nomination, noting that he backed a law that would have let businesses refuse to provide service to LGBTQ people. He also called same-sex marriage “a pander to liberal interest groups.”
Given his willingness to make high-profile incendiary statements opposing basic human rights, Wilson will likely be yet another reliably extreme voice on an already-conservative court of appeals.
Elizabeth Branch, 11th Circuit
In February, Branch dissented in a key voting rights case, issuing an opinion that would bar private organizations like the NAACP from suing to enforce voting rights. Now, amid a pandemic ravaging prisons, Branch, along with George W. Bush-appointee William Pryor, holds that Miami-Dade County is not required to give soap, cleaning supplies, or masks to inmates at the Metro West Detention Center.
Judge Charles Wilson, appointed by Bill Clinton, dissented and said he would have upheld the lower court’s decision.
Over 300 inmates in Miami-Dade’s jails were infected with the coronavirus as of late April. One inmate at Metro West, Charles Hobbs, died in early May. Inmates in the jail alleged they don’t have enough soap, are being denied laundry detergent and other cleaning materials, and are waiting days for medical attention.
The lower court agreed with the inmates and granted an injunction requiring Metro West take minimal steps to help stop the spread of the virus within the jail. The county would be required to give each inmate enough free soap and towels for frequent daily handwashing, disinfectant supplies that kill the virus, an adequate supply of toilet paper, and access to showers and clean laundry. The district court decision also required face masks for inmates.
Branch and Pryor disagreed with these basic humanitarian measures and reversed the lower court. They praised Metro West corrections officials for attempting to enforce social distancing, a finding that ignored inmate allegations they were forced to sleep only two feet apart from one another. Their decision accused the lower court of “tak[ing] charge of many administrative decisions” normally left to corrections officials.
The majority opinion paid lip service to the fact that COVID-19 “presents a danger to the inmates” but immediately disregarded that harm by declaring that the inmates couldn’t show “irreparable harm,” since the corrections defendants were already engaging in some limited safety measures.
Branch’s position here is willfully cruel, and it will undoubtedly result in more infections, and possibly more deaths, in the Metro West facility. It’s a view well in keeping with Trump’s lax attitude toward the pandemic.
Kevin Newsom, 11th Circuit
Trump nominated Kevin Newsom, Alabama’s former solicitor general, to the U.S. Court of Appeals for the 11th Circuit in 2017.
Since then, Newsom has issued or joined decisions designed to limit the rights of vulnerable or marginalized people. He was part of the three-judge panel in Bostock v. Clayton County, Georgia that held a man fired for being gay couldn’t sue his employer because Title VII, which bans discrimination on the basis of sex, doesn’t ban discrimination based on sexual orientation. That case came before the U.S. Supreme Court earlier this term.
Last year, Newsom wrote an 11th Circuit en banc opinion that made it much harder for workers to sue employers for discrimination. And he affirmed a denial of asylum to a woman who had been raped for years by her family members in Guatemala, with the government there failing to intervene.
With that record, it’s no surprise Newsom was willing to undermine the rights of one Jeffrey Epstein’s victims, Courtney Wild, who had filed a civil suit in 2008. She alleged that the U.S. Attorney’s Office in Florida, at that time led by former Trump Secretary of Labor Alex Acosta, violated the law when it reached a non-prosecution agreement (NPA) without conferring with Epstein’s victims. The NPA meant that Epstein received federal immunity in exchange for a plea to two low-level prostitution charges, all without the victims, including Wild, being consulted.
Wild alleged this arrangement violated her rights under the Crime Victims’ Rights Act (CVRA). She argued that the U.S. Attorney’s Office failed to allow her to properly confer with federal prosecutors about Epstein’s crimes, to be treated with fairness, to receive notifications of relevant court proceedings, and to learn about restitution options.
Wild’s litigation dragged on for 11 years, with the federal government pushing back the entire time, until February 2019, when a federal district court judge ruled that the government violated the CVRA when it failed to confer with Epstein’s numerous victims before setting up Epstein’s deal. Wild then asked the district court to void the deal.
Of course, several months later, Epstein killed himself while in custody. This led the district court to hold that Epstein’s death mooted the issue, as he could no longer be subject to prosecution. Wild appealed, and the case came before a three-judge panel that included Newsom.
Newsom wrote the majority opinion in the case, joined by Judge Gerald Tjoflat, a 90-year-old first appointed to the federal bench by Richard Nixon in 1970. Judge Frank Hull, a Clinton appointee, dissented. Newsom read the CVRA narrowly and held that though the statute guarantees “a reasonable right to confer with the attorney for the government,” that right doesn’t take effect until criminal proceedings are underway. And in the Epstein case, the government never began federal criminal proceedings, instead using the NPA to allow Epstein to plead to state charges.
Newsom’s decision doesn’t just leave Wild and Epstein’s other victims in eternal limbo. It gives U.S. attorneys a roadmap by which they can avoid consulting with victims about anything as long as they avoid filing federal criminal charges. It invites what happened with Epstein to happen again.