WASHINGTON — Fresh from handing President Trump a victory in his impeachment trial, the U.S. Senate has moved to install federal judges who have expressed disdain for the Voting Rights Act, the landmark 1965 law that struck down rules across the South that kept African-Americans from the ballot box.
Overturning voting-rights protections tends to benefit Republicans, who have said states, not the federal government, should decide the particulars of how elections are conducted. Some scholars even believe that weakening the Voting Rights Act ahead of the 2016 election helped Trump win the presidency.
The first of those nominees, Andrew L. Brasher, 38, was formerly the solicitor general of Alabama, a position that allowed him to stake out conservative stances on issues from gun control to reproductive rights. He was confirmed to an Alabama district court last year and, in a rapid elevation, was nominated only months later for a seat on the 11th Circuit court of appeals, which is based in Atlanta. Despite intense opposition by progressive groups, Brasher was confirmed by the full Senate on Feb. 11 in a 52-43 vote.
He is the 188th judge confirmed during Trump’s time in the White House.
The other nominee is Cory Wilson, 49, a former Mississippi politician who is now a state appellate judge there. He is currently being considered for a Mississippi federal district judgeship and is expected to face a full Senate vote sometime in March.
The nominations were “an opening salvo to 2020,” and not a welcome one at that, said Lena Zwarensteyn, an expert on the judiciary at the progressive Leadership Conference on Civil and Human Rights. She worried that these two jurists, and others, were advancing “really extreme arguments when it comes to voting rights.”
Conservatives argue that it is unfair to characterize judges like Brasher for work they did on behalf of constituents they were required to defend in court. “When lawyers take litigating positions on behalf of their clients, they’re doing their jobs,” says Mike Davis, whose Article 3 Project advocates for a conservative judiciary.
Democrats, he warned, “need to remember that Eric Holder provided free legal services to suspected terrorists.” The reference is to pro bono work by Holder’s firm, Covington and Burling, on behalf of suspected jihadists detained at Guantánamo Bay detention facility in Cuba. Holder served as U.S. attorney general for former President Barack Obama.
Brasher’s confirmation means that half of the judges on the 11th Circuit are now Trump nominees. None of those judges is African-American, though there are nearly 8 million African-Americans living in the three states it covers.
Wilson, meanwhile, would be seated in the Southern District of Mississippi, which is part of the Fifth Circuit along with Texas and Louisiana. Of the five Trump appointees to the Fifth Circuit, four have been white men.
Trump has remade federal courts all across the country, but those changes could be especially consequential in the Deep South, where judges helped keep segregation in place, but then later struck segregation down during the civil rights era. Many decades since then, courts have continued to struggle with race, in particular regarding the Voting Rights Act of 1965, which gave the federal government great powers to supervise elections in Southern states that had previously kept African-Americans from voting.
Fairness of elections was also at the heart of Democrats’ argument about the just-concluded impeachment inquiry. Trump was accused of pressuring the Ukrainian government to open investigations that would benefit him domestically, but he was acquitted by a Republican-controlled Senate.
“Senate Republicans are trying to rig the election at every turn,” Nan Aron of progressive organization Alliance for Justice told Yahoo News.
“After giving Trump a pass on withholding foreign aid in exchange for interference in the election, they immediately returned to confirming nominees with terrible records, including on voting rights,” she added.
As far as the president’s critics are concerned, appointing judges who will roll back voting-rights protections also has long-term effects on elections. Even if the new judges don’t help Trump in the near-term, their lifetime tenure on the federal bench could ensure Republican majorities for a generation to come. Bob Moser, author of a book on Southern politics called “Blue Dixie,” notes that voter suppression efforts have been moving forward in Florida, Tennessee and Texas.
A former solicitor general of Alabama, Brasher has a long history of resisting federal oversight of state election laws. In 2012, he filed a petition in favor of an Arizona law that would require identification at the polls. Voter ID laws, as they are known, tend to decrease participation by poor people and minorities because they are sometimes unable to meet the kind of stringent documentary requirements such laws demand. The brief was signed by some of the most conservative attorneys general in the nation, including Greg Abbott of Texas and Scott Pruitt of Oklahoma.
In 2013, he filed a brief in Shelby County v. Holder, a case in which an Alabama county tried to get out from under the supervision foisted on it by the Voting Rights Act. “The Alabama of 2013 is not the Alabama of 1965 — or of 1970, 1975, or 1982,” Brasher wrote in his brief. He argued that “Congress violated the constitution” by continuing to treat the state as if it somehow persisted in restricting African-American participation in the democratic process.
Later that year, the Supreme Court decided Shelby County in favor of Alabama, handing conservatives a long-sought victory.
In 2014, he argued Alabama’s case against African-American legislators who charged that Republicans created electoral districts that concentrated black voters, depriving Democrats of broad statewide support, a practice known as gerrymandering.
Brasher denied that any gerrymandering took place. A district judge disagreed, writing that the “evidence here is overwhelming that the State has intentionally singled out individuals based on race.” In 2015, the U.S. Supreme court agreed, rejecting Brasher’s claim.
Progressives mounted a ferocious opposition to Basher’s nomination. “For Republicans determined to snuff out voting rights in the courts, Brasher is an ace in the hole,” wrote former Florida gubernatorial nominee and voting rights advocate Andrew Gillum in a Tampa Bay Times op-ed.
Wilson, the Mississippi district court nominee, is also in favor of voter identification laws. In a 2013 article for the Press-Register of Mobile, Ala., he complained about the recent mayor election in nearby Hattiesburg, Miss., which a Democrat had won. Wilson, a Republican, complained of “voter impersonation” and “disenfranchised felons voting,” a claim frequently repeated by conservative media outlets covering elections.
In his article, Wilson argued that federal oversight was not necessary, while more stringent voting regulations were. “They might spend less time chasing agendas that aren't there,” he wrote of federal monitors, “and more time investigating the voter fraud and other irregularities.”
Writing in another op-ed, Wilson argued that “Voter ID is a part of ensuring cleaner elections.” Studies have found that to not be the case. Wilson blamed both politicians and the media: “The Rachel Maddows of the media world have joined the chorus of ‘voter suppression’ right on cue from Team Obama,” he wrote.
Brasher’s confirmation was not a surprise, and Wilson’s record of inflammatory writing may not make a difference. The current chairman of the Senate Judiciary Committee, Sen. Lindsey Graham of South Carolina, has previously supported extension of Voting Rights Act provisions. But he is now one of President Trump’s closest allies on Capitol Hill and has made confirming Trump’s judicial nominees a priority.
The full Senate has sometimes proved more problematic for Trump nominees. Sen. Tim Scott of South Carolina, the only African-American member of the Republican conference, has more or less single-handedly stopped the confirmations of two Trump nominees: Thomas Farr of North Carolina, who had been accused of voter-suppression efforts, and Ryan Bounds, who had published inflammatory articles on race.
But as the vote on Brasher neared, it became clear that Scott was not going to stand in the way. Scott’s spokesman, Sean Smith, noted in response to a Yahoo News query that Scott had voted in favor of Brasher’s confirmation to the district court last year. “I have not heard anything to indicate his position has changed,” Smith said.
Judicial nominees could potentially encounter resistance from moderate Republicans Susan Collins of Maine and Lisa Murkowski of Alaska for reasons unrelated to voting rights. Collins and Murkowski have both expressed disfavor for judges who want to strike down Roe v. Wade, the 1973 Supreme Court decision that legalized abortion.
Wilson has called Roe “the result of a liberal activist court” and, as a state legislator, has endorsed a number of measures that would make it more difficult for a woman to terminate a pregnancy. As the solicitor general of Alabama, Brasher routinely defended similar measures.
Neither the office of Collins nor Murkowski responded to a request for comment ahead of the Brasher vote. Both senators voted to install him on the 11th Circuit.
Trump has appointed several judges with records on voting rights similar to those of Brasher and Wilson. Some of those judges have begun to agitate for the kind of lessened federal oversight conservatives have long yearned for.
Earlier this month, as the impeachment trial was coming to an end, a Trump-appointed judge said, in a dissenting opinion, that the Voting Rights Act infringed on states’ rights. That judge, Lisa Branch, sits on the 11th Circuit. She will soon have an ideological ally in Brasher.
In another dissent on voting rights, Fifth Circuit Trump judge Don Willett argued that states had the right to oversee their own elections, something conservatives want and progressives fear. Willett opened his dissent by invoking Abraham Lincoln, author of the Emancipation Proclamation, which freed African-Americans from slavery.
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