The rightwing takeover of the US court system will transform America

Paul Butler

Pushing the judicial system to the right has been the objective of every Republican president since Ronald Reagan. Now Trump is doing it 
 
Donald Trump has nominated an unprecedented number of judges to federal courts since his appointment. These are making steady progress through the Senate confirmation process and yet they have escaped the sort of scrutiny that Trump normally attracts. This is unfortunate, because the impact of Trump’s court picks will be profound, and will help reshape American society for years to come.

Of the nearly 60 judges he has nominated, only one is black, one is Hispanic and three are women. The rest are white men. All of these people are conservatives who will be interpreting and helping (re)write the law for decades.

These appointments reveal Trump for what he truly is: a Republican. His court picks amount to a right-wing takeover of the court system. This has been the objective of every Republican president since Ronald Reagan. Trump is distinguished only by his success at transforming the federal bench so early in his term.

The claim that Trump has not accomplished much in his first year in office is dead wrong. He is fashioning the federal court system of Steve Bannon’s dreams. The president has nominated judges who will cut back the civil rights of racial minorities and LGBT people, expand the power of police and prosecutors, restrict the ability of women to obtain abortions and favor big corporations over consumers.

Trump took office facing a backlog of 114 judicial appointments – the most of any president since Bill Clinton. This was not a coincidence but rather the product of a calculated project by Republicans in the US Congress to deny Barack Obama his authority to appoint judges. In a bold power play, Senate Republicans, who must confirm judicial nominees, simply refused to vote on most of Obama’s selections during the last year of his presidency. They were, in effect, waiting for Trump.

Now Republicans have been rewarded for their abdication of their constitutional responsibilities during the Obama administration. President Trump has nominated 60 judges to fill the vacancies, with 14 already confirmed. If Trump were to resign or be removed from office tomorrow, he could leave proud that his profound impact is already set in stone: a generation of ultra-conservative judges with lifetime appointments who will transform the US into more of a police state than it already is. But again, this is more of a Republican project than a Trumpian one.

In terms of their ideology, Trump’s judicial nominees – including racists, sexists, homophobes and gun nuts – are pretty much the same as any other Republican president would make.

Neil Gorsuch, his first appointment to the US supreme court, joined conservatives like Clarence Thomas, who thinks that states should be able to make gay sex a crime, Samuel Alito, who thinks there should be almost no restrictions on gun ownership, and John Roberts, who thinks affirmative action and substantial portions of the Voting Rights Act are unconstitutional.

Republicans widely view the Gorsuch appointment as the best thing Trump has done in office. Every Republican present in the Senate that day voted for Gorsuch’s confirmation, including moderates like John McCain and Susan Collins who have opposed some other aspects of Trump’s agenda.

On the US supreme court, Gorsuch has been really busy – he wrote more separate opinions in his first month on the court than Elena Kagan, the next newest justice, wrote in two years. And he’s been a right wing judicial activist, giving a speech at the Trump International Hotel in Washington, hanging out with Senate majority leader Mitch McConnell in Kentucky, and writing opinions attacking the conservative chief justice John Roberts for not being conservative enough.

But it is in the federal and court of appeals that Trump’s court picks will have the most profound impact.

As Shira Scheindlin made clear in the first essay in this series, this is where the vast majority of American legal cases are heard. In 2015, the US supreme court decided approximately 82 cases. In 2016, it was approximately 69. In contrast, the United States courts of appeals decided 52,000 cases in 2015 and 58,000 in 2016. The United States district courts decided 353,000 cases in 2015 and 355,000 in 2016.

So, despite all the attention supreme court nominees get, we need to talk about the loonies Trump is placing on the lower courts that make the biggest difference in the lives of ordinary Americans.
Jeff Mateer, Trump’s nominee to the federal bench in Michigan, called transgender children “proof that Satan’s plan is working”, while John King, who was recently confirmed for the US court of appeals, described abortion as one of two “greatest tragedies” in US history, with slavery being the other.

Every Republican president since Roe v Wade has promised to appoint judges who would overturn Roe v Wade. A record of hostility to LBGT rights or school desegregation would be a resume enhancer for any person who aspires to the bench during a Republican administration.

Most Republicans wouldn’t be as open as Trump, who promised his judicial selections would “all be picked by the Federalist Society”, an organization of right-wing lawyers and law students. But, since its founding in 1982, the Federalist Society has played an important role in judicial selection for every Republican president, from Ronald Reagan who plucked Antonin Scalia and Robert Bork from the organization’s “faculty advisors”, to George W Bush, who made members of the ultra right-wing organization half of his appointments to the courts of appeal.

The problem with Trump exceptionalism – the claim that the Donald is an outlier – is that it lets other Republicans escape the blame for their long simmering bigotry. All President Trump has done is stir the pot. As the hip-hop expression goes, “don’t hate the player, hate the game”. 

Indeed, as a man who seems to have no permanent ideology outside of his vast narcissism, Trump’s right-wing takeover of federal courts might be the most Republican thing he does in his entire presidency.

Some progressives are bemoaning the lack of diversity of Trump’s nominations, almost 80% of whom are white men. To date Trump has nominated one African-American and one Hispanic judge. This stands out in stark contrast to Barack Obama, whose judicial appointments were over 40% female, and about 30% African American and Hispanic. Obama appointed more Asian-American federal judges than all the presidents before him, combined.

Of all the opportunities to resist that the Trump administration has inspired, protesting the lack of diversity of his court appointments is a fail. It shouldn’t be difficult for Trump to find some women and people of color who are Federalist-society approved. 

The fact that those names haven’t come forward is more evidence of the disdain in which Trump holds people who are not rich, white heterosexual men. But we already know that from Trump’s boasts about pussy-grabbing, his shout-out to the Nazi sympathizers in Charlottsville and his
It would not advance the causes of women’s rights, racial justice, and LGBT equity to have a bunch of female, minority and queer judges with the same reactionary jurisprudence as the white guys who Trump has nominated. African Americans learned this lesson the hard way. 

US supreme court justice Clarence Thomas was appointed by George HW Bush to the black “slot” on the supreme court after Thurgood Marshall, the pioneering civil rights lawyer, died. It was well known that he was extremely conservative, but many African Americans still supported him based on the idea that it was important for blacks to have a seat at the table, regardless. 

In the same way that Donald Trump seems animated by reversing the legacy of Barack Obama, Clarence Thomas has spent the last 25 years undoing everything Thurgood Marshall stood for. Thomas has voted against affirmative action, the Fair Housing Act and the Voting Rights Act. 

He wrote an opinion reversing a jury award of $14m to a black man who been wrongfully convicted and placed on death row for 14 years for a crime he did not commit. Donald Trump, during the campaign, called Clarence Thomas his “favorite” supreme court justice. But for many black folks, Justice Thomas’ presence on the court has become an embarrassment rather than a symbol that someone there is attentive to their concerns.

Do we really need a bunch of other minority and female justices in that mode? No thank you, Mr President. The larger problem is that the US faces is a new generation of federal judges, with lifetime appointments, dedicated to eliminating constitutional protections for anyone who is not white, male, heterosexual and rich. Don’t blame the Donald. He’s just a Republican.