No matter how disgusted Republicans pretend to be over Donald Trump’s revolting behavior and inexperience, they, like dutiful soldiers, continue to line up behind him because he is handing them and their wealthy donors all the tax cuts, regulations rollbacks, evangelical pseudo-Christian dogma, and step-by-step dismantling of Democracy that has obsessed their party the past four decades.
But that’s not all he’s giving them.
Elections have consequences, and one of those consequences lies in a president’s constitutional authority to appoint federal judges.
Article two, section two of the Constitution, delineating the powers of the president, states:
“He [the President] shall have Power, by and with the Advice and Consent of the Senate,…appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
This means the president and the Senate are responsible for lifetime appointments of judges to preside over thousands of cases in federal courtrooms nationwide.
Albeit not a sexy enough issue for the mainstream media, it impacts this country’s future far beyond presidential terms.
Since Trump’s inauguration, McConnell has been behind the scenes approving a staggering quantity of federal judges–to date, 51 circuit court judges and two Supreme Court justices.
Quoting a recent Guardian piece:
“Trump has notched more confirmations of appeals court judges, faster, than any president at a similar stage in history, a record he frequently gloats about and cannot resist inflating.”
As election day nears, Trump’s re-election not inconceivable, and Justice Ruth Bader Ginsburg’s recent hospitalization, it’s possible the Trump/McConnell duo could perpetuate Trumpism for generations, regardless who occupies 1600 Pennsylvania Avenue.
Legal director for the Alliance for Justice, Daniel Goldberg, commented on the lasting impact this will have on the country long after Donald Trump is gone.
“Long after Donald Trump leaves the seat, his fingerprints will still be on our justice system—two, three, four decades from now.”
Carrie Severino, the chief counsel and policy director for the conservative Judicial Crisis Network, added:
“Executive orders don’t outlast the president, legislation can change, but these judgeships last a long time.”
Quietly, Republican lawmakers are preparing for Ginsberg’s retirement.
Sen. John Barrasso (R-Wyo.) told Politico:
“We’re going to fill it. With Justice Scalia…people might not have thought he was the one, because he wasn’t the oldest at the time. You just never know.”
Sen. John Cornyn (R-Texas) added:
“If the president makes a nomination then it’s our responsibility to take it up.”
Putting that into perspective, the second year of Barack Obama’s first term, the Democratic-controlled Senate confirmed 49, mostly due to Sen. McConnell’s refusal to act on nominees.
“You know what my top priority is? It’s the judiciary. We intend to keep confirming as many as we possibly can as long as we can do it.”
A White House official told Politico:
“If anything there will be more of an appetite for judges and more of a focus on it without the House anymore. It will be one of the few affirmative things that could still be pushed.”
Former Republican House Speaker Newt Gingrich wrote in a Fox News op-ed:
“If the Democrats had acquired a majority in the Senate, they could have blocked every person President Trump nominated for federal judgeships. This was the biggest achievement of Trump’s first two years, and now it is likely guaranteed to continue.”
We all remember what happened with Merrick Garland.
McConnell left vacancies unfilled, biding his time for a Republican president.
And his patience paid off.
How serious is it?
Three federal circuit court judges confirmed in December–Mary Kay Vyskocil, Lewis Liman, and Gary Brown–refuse to acknowledge whether 1954’s Supreme Court decision Brown v. Board of Education, which ruled public school racial segregation unconstitutional, was appropriately decided.
One claimed abortion causes breast cancer, thereby implicitly accusing Planned Parenthood of murdering women.
Many are opposed to LGBTQ rights.
Some defend voter suppression laws.
At least one claimed poverty is “a mind-set,” and American society has become a society of “leeches.”
The Leadership Conference’s Fair Courts campaign director, Lena Zwarensteyn, said in a statement:
“McConnell is rushing to confirm as many lifetime nominees as he can to entrench his terrifying agenda. With his caucus’ full participation, he will stop at nothing to achieve through the courts what his party cannot accomplish legislatively: erasing the progress the nation has made to protect civil rights. With shameful glee, McConnell has transformed twenty percent of the federal judiciary already, and is intentionally installing individuals who have demonstrated hostility to the communities whose civil and human rights are most at risk under this administration.”
University of Massachusetts at Amherst political science professor Sheldon Goldman stated:
“The change is happening. It’s happening before our very eyes.”
Consider recent actions.
So far, Trump judges undermined laws protecting immigrants, workers, and other marginalized groups.
The Guardian listed several ways Trump’s judicial appointees aggressively undermine American democracy:
“The Guardian reviewed dozens of cases affected by Trump’s judges, which included creating majorities in rulings that targeted immigrants and workers and undermined protections for society’s most vulnerable. They have:
- Attacked the Affordable Care Act and chipped away at healthcare.
- Greenlighted funding for Trump’s border wall.
- Stepped aside to allow partisan gerrymandering.
- Defended abusive policing.
- Permitted encroachments on the Americans with Disabilities Act.
- Shrugged at emergency requests in death penalty cases.
- Established and reinforced religious exemptions from anti-bias laws.”
“We had fears about what these jurists would do when they got on the bench, just from their records. This administration more than any has really been putting movement ideologues on the bench who have an agenda. And once we got far enough into the administration, we realized that the judges about whom we had fears were issuing decisions that were highly problematic.”
It matters who is in the White House if for no other reason than the clandestine decisions that affect our lives and those of our children and grandchildren.
The president, although constitutionally limited, still holds enormous power to shape the legal foundations upon which our republic is based.
Just look at how Attorney General Bill Barr completely let disgraced former National Security Adviser Michael Flynn off the hook, despite Flynn’s admission of lying to the FBI in the investigation into Russian interference in the 2016 election.
This president and his accomplice the Senate Majority Leader are more of a threat than we know.