While most of us struggle to keep up with the daily outrages of the Trump administration, Senate Republicans are confirming nominees for the federal judiciary at an assembly line pace. And, the people they are confirming are far to the right of the conservative judicial mainstream. They are people for whom conventional legal reasoning is irrelevant, for whom the desired political outcome overrides every consideration. They will have an impact on our lives for years to come.
After refusing to confirm nominees during the Obama Administration, Republicans are now speeding them through the Congressional process so that they can pack the courts before the midterm elections.
Because of the past obstructionist tactics of the Republican Party there are still over 100 vacancies in the federal judiciary. Chuck Grassley, Chairman of the Senate Judiciary Committee, “departed from decades of Senate practice to expedite the hearing processes for circuit court appointees.” Grassley put multiple nominees together in a single hearing, making it more difficult for staff to “properly vet and question any of them.” (Michaelson, 9/21/17)
And, Grassley limited the time for the questioning of nominees who are getting lifetime appointments to federal appellate courts. These individuals will spend decades on the bench when Democratic senators were allowed only 15 minutes to question them (Michaelson, 9/21/17). Anyone who has ever watched a Congressional hearing knows that nominees can easily filibuster for 15 minutes of questioning, easily refraining from answering any hard questions.
Grssley’s tactics have been called “unprecedented and consequential” by Kristine Lucius, from the Leadership Conference on Civil and Human Rights. In the past nominees have been lumped together or “stacked” only when the minority agreed to do so. This is being done over the objection of the minority party (Michaelson, 9/21/17).
In October of 2018, Grassley, also over the objections of Democrats, pushed ahead with hearings for judicial nominees during the Congressional recess. That way, Democrats won’t get to question the nominees at all. Grassley’s response to the objections of Democratic Senators was: “As a result of Democratic delay tactics, there are now 154 current and future judicial vacancies, 63 of which are classified as judicial emergencies. The judiciary simply cannot afford further obstruction from your side” (LeBlanc, 10/15/18).
The tactic of first obstructing nominations and then rushing them is not an accident. Republicans have been working since the Reagan administration to pack the courts with “right-leaning” judges. They have become emboldened during the Trump administration to appoint not only “right-leaning” judges, but people who are far to the right and utilizing judicial interpretation based far beyond anything most people would recognize as conventional legal reasoning.
The court packing comes at a time when the courts have become “the last bastion of civil rights.” The courts stood in the way of Trump’s travel ban and slowed EPA rollbacks of environmental regulations, to name just two areas. The courts have also in the past limited executive power (Michaelson, 9/21/17). With the appointment of Bret Kavanaugh, that may all come to an end.
The recent Republican nominees have been chosen by the Federalist Society and the Heritage Foundation and are therefore “extreme right-wing nominees.” One sitting circuit court judge compared abortion to slavery and another nominee called Justice Anthony Kennedy a “prostitute” (Michaelson, 9/21/17).
Leonard Leo, Trump’s adviser on the judiciary who is managing what Michaelson (9/21/17) calls “the think-tank-to-court pipeline,” said in May of 2017: “I would love to see the courts unrecognizable” (Michaelson, 9/21/17).
Leonard Leo may well get his wish. I dread the day.
LeBlanc, Paul (10/15/18) Grassley rejects Democrats plea to delay judicial hearings until after recess. CNN.
Michaelson, Jay (09/21/17) While you weren’t looking, the Senate has been rubber-stamping Trump’s Extreme Judicial Picks. Daily Beast.