Editor’s note: When it comes to monitoring and assessing the state of the federal judiciary, no organization does a better or more thorough job than the Washington, DC-based Alliance for Justice (AFJ). This work has been especially important over the last two years as the administration of President Donald Trump and the Republican controlled U.S. Senate have worked aggressively to remake the courts by packing them with an unprecedented collection of extremist nominees.
Recently, in response to the Trump-GOP assault, AFJ published a new and detailed report entitled “Trump’s Attacks on Our Justice System.” The report provides a useful resource for caring and thinking people who seek to grasp the magnitude of the challenge Trump and his allies pose to our democracy and a call to action for all who care about preserving it. Below is the introduction to the report. Click here to explore the full document.]
For nearly 40 years, Alliance for Justice (AFJ) has worked to ensure that our nation’s justice system advances core constitutional values, preserves critical rights and unfettered access to the courts, and adheres to the even-handed administration of justice for all Americans. We have never witnessed an assault on our justice system like the one we have seen since Donald Trump became President.
President Trump has repeatedly demonstrated his contempt for the rule of law. His likely criminality is referenced in court filings. He has verbally attacked judges who have ruled against him. He has stated that he expects personal loyalty from those in law enforcement. He has demanded investigations into the media and political opponents. He has repeatedly tried to undermine independent investigations. He has mocked constitutional rights. He has abused his pardon authority. He has repeatedly acted in ways struck down by courts. His attempts to subvert the independence of the Department of Justice are especially egregious, and a detailed examination of those actions could easily consume an entire report.
Indeed, a point-by-point recitation of President Trump’s shameful conduct in office could consume several reports. This retrospective report, however, issued after the 115th Congress, will focus on one specific aspect of Trump’s impact on our justice system: the judicial nominations, put forward by the White House, that have emanated from organizations funded by the wealthy and powerful and have been expedited by the Senate’s disregard for norms and rules. The President has placed numerous ultraconservative individuals on the bench who will erode rights and legal protections for generations, long after he leaves the White House.
In considering President Trump’s impact thus far on the federal bench and the unprecedented role played by Senate Republicans, it is useful to begin with his two Supreme Court nominees: Neil Gorsuch and Brett Kavanaugh. The events surrounding their nominations, as well as their own records, epitomize the Trump Administration’s threat to our rights and values through its impact on the courts.
Gorsuch, whose extreme views were well documented by Alliance for Justice and others prior to his confirmation, sits on the Court because Senate Republicans refused to consider President Barack Obama’s nomination of Merrick Garland. By taking the unprecedented step of obstructing the Garland nomination, Republicans successfully held the late Justice Antonin Scalia’s seat open in the hope that a Republican president would be elected. The newly-elected President Trump promptly took advantage of this opportunity. Rather than negotiating with Senate Democrats on a consensus jurist, he selected Gorsuch from a Federalist Society list, and Senate Republicans changed Senate rules to confirm him. Once on the Court, Gorsuch continued to cozy up to Republican leaders. He did a “victory lap” visit to Kentucky with Mitch McConnell, spoke at the Trump Hotel and Federalist Society, and dined with Republican leaders to discuss “important issues facing our country.” Predictably, as a justice, he has refused to hold the Trump Administration accountable. For example, he joined the conservative majority upholding President Trump’s discriminatory Muslim Ban. He also voted to eviscerate protections for workers and to decimate civil rights.
Kavanaugh was likewise nominated to the Supreme Court because of support from the Federalist Society. His record as a lawyer, a George W. Bush Administration official, and lower court judge was one of extreme partisanship and advancement of political goals; indeed, polling conducted during his confirmation process showed that his base of support was extremely narrow and that he was an unpopular nominee with the American public at large. And as was the case with the Gorsuch nomination, Senate Republicans eroded Senate norms to ram Kavanaugh’s confirmation through. The list of abuses and irregularities they perpetrated in service of this goal is long: It includes withholding and hiding documents from other senators and from the public, condoning lying, and handcuffing the FBI in its investigation of credible allegations of sexual assault.
In other words, Republicans played political hardball and won – they kept Merrick Garland off the Supreme Court and installed two men on the Court who will advance partisan goals, devastate constitutional rights, and undermine legal protections for decades.
The confirmations of Gorsuch and Kavanaugh were the culmination of a 50-year effort. At least since Lewis Powell argued that the “American economic system is under broad attack” and urged the business community to weaponize the courts to serve business interests, Republican presidents have tried to pack the courts with ultraconservatives. Trump is just perhaps the most brazen, repeatedly emphasizing his litmus tests – judges who will overturn Roe v. Wade, overturn the Affordable Care Act, and strike down gun safety laws – as a way to alleviate concerns among the conservative base. In fact, he went further than any president before, explicitly promising to outsource his constitutional authority to select judges to outside groups and relying exclusively on the pre-published Federalist Society list.
The story of Trump’s impact on the courts, however, goes well beyond the Supreme Court. For most Americans, the lower courts have the final say on their rights under the Constitution and whether critical legal protections will be properly enforced. The Supreme Court decides fewer than 100 cases each year. In contrast, over 50,000 cases are filed in federal courts of appeals and over 340,000 are filed in district courts every year.
Unfortunately, the same tactics Republicans used to keep Garland off the bench, and to confirm Gorsuch and Kavanaugh, have been used to confirm narrow-minded, biased lower court jurists.
In fact, Republican Majority Leader Mitch McConnell has been open about his prioritization of packing the federal bench with ultraconservative jurists with the explicit goal to advance Republican policy objectives (as opposed to neutral jurists who will simply apply the law). As The New York Times noted recently:
The unprecedented number of conservative-approved judicial nominees McConnell has waved through the Senate — a process for which he laid the groundwork before Trump was elected — stands to shift much of the burden of conservative policymaking away from an increasingly paralyzed Senate. In the coming years, battles over voting rights, health care, abortion, regulation and campaign finance, among other areas, are less likely to be decided in Congress than in the nation’s courthouses. In effect, McConnell has become a master of the Senate by figuring out how to route the Republican agenda around it.”
Conservatives know they cannot achieve their unpopular policy objectives through the democratic process – one need only look at Republican failure to repeal the Affordable Care Act even with both houses of Congress and the White House. So, instead, they wish to fill the courts with partisan, ideological judges.
This report contains appendices documenting many of Trump’s ideological nominees from the 115th Congress. Appendices A-U are replete with nominees who have histories of bigoted and offensive comments, troubling records, and bias. Yet, with very few exceptions, every single Republican in the Senate voted for these individuals. In many cases, evidence of offensive writings, prejudicial policy positions, and/or a glaring absence of experience still did not dissuade Republicans en masse from supporting a judicial nominee.
From filibustering any Obama nominee to the D.C. Circuit, to using the blue slip to block well-qualified and noncontroversial nominees, Republican Majority Leader Mitch McConnell and Senate Republicans led an unprecedented obstruction effort against President Obama’s nominees to the lower federal courts. This obstruction allowed President Trump to inherit 17 circuit court and 88 district court vacancies. In comparison, President Obama entered office in 2009 with just 54 vacancies.
When Trump took office, Senate Republicans proceeded to degrade the Senate’s advice and consent role and to minimize vetting in order to fill these vacancies at an extraordinary pace. The result is that President Trump had 30 circuit court judges confirmed in his first two years, compared to just 16 for President Obama. Moreover, it is no exaggeration to say that McConnell and Senate Judiciary Committee Chairman Chuck Grassley systematically destroyed Senate rules and norms in order to install overwhelmingly white, male, inexperienced Federalist Society members on the bench. These nominees have largely been united in their commitment to the advancement of ultraconservative ideological goals and to using the courts to attack access to health care; to undermine the rights of persons of color, women, LGBTQ Americans, immigrants, workers, and consumers; and to destroy environmental protections. To put it bluntly, millions of people will suffer because of rulings made by judges the Republican-controlled Senate has confirmed.
At the same time, it is important to note that several problematic nominees were successfully defeated. Because of the advocacy of AFJ along with numerous other groups and people across the country, as well as the leadership of Democratic senators, Ryan Bounds, Thomas Farr, Jeff Mateer, Brett Talley, Gordon Giampietro, Damien Schiff and Steven Schwartz are not adjudicating the rights and liberties of others.
In addition, the fights over Gorsuch, Kavanaugh, and lower court nominees have increasingly energized progressives around the courts issue, as opposition and coalitions continue to grow. An outstanding series on the People For the American Way website, “Confirmed Judges, Confirmed Fears,” provides ongoing documentation of how Trump’s judges have brought their agendas to the bench.
This retrospective report reviews the first two years of judicial nominations and confirmations during the Trump presidency. Except where otherwise noted, all data and analyses pertain to the period ending on January 3, 2019, which marked the end of the 115th Congress. Part I provides data as to persons nominated and confirmed. Part II describes what many of the nominees have in common – records of working to eviscerate critical rights and legal protections. Part III describes the erosion of rules and norms to confirm many of President Trump’s nominees. Part IV offers hope, because we believe that all those who care deeply about fair-minded judges and courts can still find reasons to remain optimistic about the future despite the current President’s assaults on the rule of law and our rights. Finally, the appendices provide information on select nominees’ records, broken down by subject matter.
Click here to read the full report.
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