Donald Trump has got one thing right: we have not been paying proper attention to the avalanche of appointments he is making to the country’s federal courts. Underway is a packing of the judiciary that I’m guessing will end up being his most enduring legacy as president.
While he has dragged filling other senior jobs in government, particularly diplomatic posts, Trump, helped by Senate majority leader Mitch McConnell, has wasted no time finding folks to his liking to take up vacant judgeships. His choices are worthy of scrutiny for multiple reasons. Only one among them is this: so far they have been 91 per cent white and 81 per cent male.
Never mind that the judiciary will thus become even less reflective of the country’s actual diversity. More important for Trump is populating the bench with judges with proven records of conservative, anti-progressive thinking. Why is this so frightening? Because all those steps America has made towards a more progressive, more inclusive society, will be put in peril.
It is to the federal courts that disputes of law always travel, some eventually landing in the Supreme Court. Where America goes next on social issues like LGBTQ rights, abortion rights, the constitutionality of the death penalty, religious rights - to name a few - will turn on rulings from federal judges. It is some of those same judges nominated by previous presidents who have blocked Trump’s travel ban.
“Nobody wants to talk about it,” Trump lamented during a recent meeting of his cabinet. “But when you think about it…that has consequences 40 years out. A big percentage of the court will be changed by this administration over a very short time.”
He meant courts, plural, although few would dispute that his placing of Neil Gorsuch, a conservative judge from Colorado, on the US Supreme Court remains his most significant achievement so far. Gorsuch took the spot left by Antonin Scalia who died in February last year.
You will recall that Republicans in the US Senate, led by McConnell, blocked hearings to confirm Barack Obama’s pick to replace Scalia, Merrick Garland. But they employed similar tactics across the gamut of federal courts. With Republicans in charge, a mere 22 judges were approved in Obama’s final two years, the slowest pace since the early 1950s.
Then came Trump. What joy. So many empty judgeships, so much time - a unique opportunity for him to put his stamp on the American bench. So far, he’s sent no fewer than 59 nominations to the Senate Judiciary Committee for confirmation. Republicans, who outnumber Democrats on the panel 11 to nine, can hardly keep up. That blurry object you see is their rubber stamp.
With so much going on, we must not lose sight of this: @realDonaldTrump has replaced 10 of Obama's judicial nominees of color with white nominees. That's an incredibly dangerous trend. #TrumpJudges pic.twitter.com/FwmoRJ79Fj
— Civil Rights (@civilrightsorg) November 14, 2017
“Despite rising opposition to President Trump’s agenda across the country, Senate Republicans are continuing their rush to pack the courts with his extreme judicial nominee,” warns Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights. “Recognizing that they cannot deliver legislative victories, the Republican-led Senate is seeking to advance Trump’s radical agenda by altering the makeup of the federal judiciary.”
Well, the spotlight has turned on what’s going on now and not because Trump asked for it, but because some of his choices are turning out to be hilarious, in the opposite sense of the word. Hilarious either because they are entirely unqualified to take up the heavy responsibilities of a federal judgeship or hilarious because their past political activities surely render them unfit.
Take Brett Talley and Gregory Katsas. Nominated to sit respectively on a federal court in Alabama and on the mighty Court of Appeals for the D.C. Circuit, both won the backing of the Judiciary Committee last week. All that stands between them and their new jobs - jobs, mind you, that will be their’s for life - is final confirmation by the Senate as a whole.
Talley - wait for it - has never tried a case in his life. The American Bar Association actually took the rare step of designating him “not qualified”. At just 36 years of age - so, yes, he might be on the bench for a good 40 years - he has practised law for a grand total of three years. But he appealed to Trump for other reasons: he once worked on Mitt Romney’s presidential campaign and he proved his diehard conservative leanings penning a blog, lashing out, for instance at “Hillary Rotten Clinton” and sharing his extreme devotion to the National Rifle Association.
The Talley pick stinks for another reason: only now are we learning that when asked if he might face conflict-of-interest issues as a judge because of what members of his family might do he forgot to mention that his wife is chief of staff to White House Counsel Donald McGahn. Forgot!
Why Trump nominated Katsas is even less of a mystery. For the last nine months, he has been right there in the West Wing himself, working as deputy legal counsel. Because his finger prints are all over some of the president’s most controversial actions, including his attempts to impose the travel ban from Muslim-majority countries and possibly even the firing of former FBI Director James Comey, a chorus of liberal groups have called out his nomination as unacceptable.
“Advancing the nomination of Gregory Katsas to the federal bench is about as close as you can get to putting Donald Trump in a judicial robe,” notes Nan Aron, President of the Alliance for Justice. “Katsas is the ultimate Trump insider…yet Senate Republicans continue to rubber-stamp President Trump’s judicial picks. They should be ashamed.”
In quieter times, I used to hear people dismissing presidential elections as a waste of time. Republicans, Democrats, they are all the same. Yes, well. As I say, then came Trump.