After months of presidential tweetstorms, personnel debacles, the Russia mess and failure on health care, the Republican-controlled White House and Congress has struggled with legislative goals.
But Republicans looking ahead to 2018 may be pinning their hopes on this: build on Justice Neil Gorsuch’s confirmation, and rack up “wins” for the base by packing lower courts with hard right-wingers. Already, a flurry of headlines has touted judicial nominations as one bright spot for Trump and Republicans.
Unfortunately, those political wins are coming at a cost to courts and the public they serve, as the bar for nominees drops precipitously. Using a list dominated by ultraconservatives from the Federalist Society, President Trump is churning out batches of nominees for dozens of court vacancies, including many that are open because Republicans wouldn’t consider President Obama’s picks.
With the rush comes sloppiness. Gone are efforts to ensure nominees have the requisite experience and temperament. Gone is the customary wait for the American Bar Association nominee ratings. Ditto the bipartisan consultation that once took place.
The party-line confirmation of John Bush to the Sixth Circuit Court of Appeals, which covers a huge swath of America encompassing Michigan, Kentucky, Tennessee and Ohio, demonstrates that the Republican majority cares little whom they confirm.
Bush had written blog posts that routinely demeaned women and LGBTQ people, and recycled racist “birther” theories targeting President Obama. But all 51 Republican senators voting deemed him qualified for confirmation.
Republicans are bending other rules and norms to get the “wins,” abolishing the filibuster so Supreme Court nominees need no votes from Democrats. In Wisconsin, Trump ignored the state commission that has vetted federal judicial nominees for decades when he nominated an ally of Gov. Scott Walker for the Seventh Circuit. There’s talk of halting the century-old “blue slip” tradition allowing home-state senators to weigh in on nominations, because Republicans are chafing as Democrats take even a modicum of time to review nominees.
In Michigan, Sens. Stabenow and Peters — both Democrats — were attacked when they didn’t immediately return blue slips for Sixth Circuit nominee Joan Larsen.
But Larsen, whose confirmation hearing in the Senate Judiciary Committee took place recently, has taken controverisal positions. Her writings suggest extreme deference to presidential power: she once argued presidents can ignore the law in the name of national security — a worrisome proposition in the Trump era.
Larsen isn’t the only nominee with a controversial record: in Indiana, there’s professor Amy Coney Barrett, who has stated judges may put their obligations to their faith ahead of their judicial duties and may disregard legal precedent. She’s up for a seat on the Seventh Circuit, and in a confirmation hearing held in tandem with Larsen’s, strenuously tried to deny her prior positions.
Then there’s Damien Schiff, nominated for the U.S. Court of Federal Claims. Schiff attacked the integrity of U.S. Supreme Court justice Anthony Kennedy, calling him a “judicial prostitute.” The list goes on.
President Trump is entitled to make judicial picks. But there are thousands of accomplished Republican lawyers who would make excellent judges, and Trump’s team isn’t consistently choosing from this pool. Republicans looking for “wins” seem more than willing to take shortcuts.
It’s time to look beyond the daily distractions in Washington, and urge senators to slam the brakes and carefully vet candidates for the bench. Or brace ourselves for what passes for justice in coming decades.
Nan Aron is president and founder of the Alliance for Justice.