The Right lays siege to the federal and state courts
“What can we do?” For six months now, caring and thinking Americans have been asking that question a lot as they have anticipated and then stared into the dark abyss that is the presidency of Donald Trump.
It’s an understandable plea. The 2018 elections are a long way off and between the prevaricator-in-chief, his junta of a cabinet and the overwhelming conservative majorities that dominate both houses of Congress, there are precious few venues to which caring and thinking people can turn these days to request sane public policies – much less demand them. And, of course, it’s worse here in North Carolina. In some states, elected officials are putting up a spirited resistance to Trumpism. In North Carolina, however, about all that stands between a federal-state tag team assault and battery are a besieged and politically-shackled governor and a relative handful of mostly anonymous judges.
For now, thankfully, that tenuous line of defense is holding in a lot of places. Governor Roy Cooper is doing what he can to hold back the tide and, perhaps even more importantly, so too are a number of federal and state court judges – both here and around the country. When it comes to Trump’s war on immigrants, for instance, federal judges of both political parties have been stepping up to the plate to say “yes” to the rule of law and basic constitutional values and “no” to racism, religious discrimination and plain old ignorance. As the New York Times reported last week:
“The Trump administration’s losing streak in courts around the nation has in large part been a product of precedents established by conservative judges in the Obama era. It turns out that legal principles meant to curb executive overreach are indifferent to the president’s party.”
A similar pattern has been on display with respect to a large and growing number of unconstitutional acts of North Carolina legislators.
The final battle ground?
Of course, the problem with relying upon the courts to save the American public from its elected political leadership is that the judiciary is anything but static or immune from political influences. North Carolina state judges are elected politicians themselves and increasingly the target of meddling by state lawmakers bent upon securing rubber stamps for their action. Until Republicans took power in 2010, of course, the state was leading the nation in public campaign financing for judges – a practice that helped insulate judges from partisan politics. That protection is now long gone and state lawmakers are advancing (or have already enacted) several proposals to aggressively remake the state courts in ways they believe will be favorable to conservative policies.
Meanwhile, in what is perhaps the most frightening and potentially far-reaching threat, the Right is now fully on task in remaking the federal judiciary. The effort commenced, of course, with several years of shamelessly blockading President Obama’s court nominees, continued with the nomination and confirmation of new Supreme Court Justice Neil Gorsuch and will soon move on in the months ahead as the Trump administration commences filling a remarkable 129 vacancies on the federal courts that Republican senators have stockpiled.
Think about that last number for a minute. Thanks in large part to the Republicans’ unprecedented stonewalling of Obama’s federal court nominees, 15% of the federal judiciary now stands vacant and awaiting Trump nominations. Those nominees and the ones that come after them are the men and women (and you can rest assured it will be mostly men) who will apply and rule on the constitutionality of scores of critical laws and regulations. They are the people who will decide the future of voting rights, abortion rights, immigrant rights, the relationship between the American people and corporations and any other number of vital matters.
The process began yesterday. This is from an article in the Washington political newsletter The Hill:
“President Trump on Monday released his first batch of judicial nominees as he seeks to make his mark on the federal court system.
Trump is nominating 10 judges, including two candidates he had previously floated for the Supreme Court, Joan Larsen and David Stras.…
Elizabeth Slattery, a legal fellow at the Heritage Foundation, said the nominees are in line with the kind of judges Trump said he’d nominate — originalist, textualist judges who will be faithful to the Constitution and not interpret it as though they are legislators.”
In other words, like Gorsuch, they are hardline right-wingers who mostly do a credible job of appearing normal and responsible in public, but who share in the modern conservative obsession with empowering government to control women’s uteruses, but denying it the authority to regulate corporations, campaign contributions or assault weapons.
What’s more, unlike so many of Trump’s other nominees for cabinet jobs and other high-profile positions in the administration, with the courts, it appears the president is resisting his natural (and often self-destructive) instinct to elevate random rogues with whom he has personal relationships. Instead – whether as a result of a lack of personal understanding of the courts or a genuine understanding of his political base on the religious right (or both) – Trump is sticking to a list of vetted and gussied up candidates prepared by the ideologues on the far right.
A call to action for progressives
All of this brings us back to the question of what, if anything, progressives can and should do about all of this. The answers are, respectively, a lot and a lot. Here are two suggestions:
Right now: Join the fight today. The next elections may be a year and a half away, but Donald Trump will be putting forth the names of hundreds of new “candidates” in the weeks and months ahead who will, in many instances, have far more power than any mere member of Congress. At such a time, it’s essential that progressives pay close attention, learn the names of the nominees and the assessments of their nominations prepared by expert court watchers. This is true even for nominees outside of North Carolina. Most can’t be stopped, but some of the most extreme can and will be if caring and thinking people pay attention and speak up.
We will be doing our best here at NC Policy Watch to keep readers apprised of the most objectionable nominees, but one can also learn a lot by checking in regularly with the good folks at the national nonprofit, the Alliance for Justice, and by signing up to receive regular updates from the court watchers at the “Why Courts Matter” initiative of the Center for American Progress. Click here to get on their list.
For the long haul: Learn from the other side and make the courts a top priority. Neither the GOP blockade of Obama nominees nor the impending spate of right-wing nominees was or is a fluke or accident. They are the byproduct of years of work by groups on the extreme right like the National Rifle Association and Concerned Women of America. If you doubt this, check out the website of the latter group and see all the glamour shots of the organization’s loony boss, Penny Nance (a woman who claimed that the Age of Enlightenment led to the Holocaust and that the Disney movie “Frozen” is part of a Hollywood conspiracy dedicated to “tearing down men” and “villainizing masculinity”) with her arm around Neil Gorsuch and Supreme Court Chief Justice John Roberts.
If individuals and groups as delusional as this can, through years of applying themselves, play a major role in deciding who the judges are that will rule on our fundamental rights, surely people and organizations with a genuine connection to reality must make it a priority to do so as well.
The bottom line: For those who care about resisting Trumpism, there is no more important battle in the coming months and years than the fight for our courts. Let’s get to work.