Friday, June 16, 2017

No Lifetime Appointments While There Remains A Cancer On The Presidency

As we brace for the next revelation to contribute to Trump's "downward spiral," as Sen. Bob Corker (R-Tenn) put it, let's not lose sight of the unmitigated and long-lasting damage the malevolent orange shit-gibbon can still wreak -- particularly with regard to the federal judiciary.  Remember, the Republicans didn't only steal a Supreme Court seat when they refused to even hold hearings on Obama's nominee for the high court.  They also mucked up the process for Obama's nominees to the lower federal courts.  As a result, only twenty district court and appellate court judges were confirmed in the last two years of Obama's presidency (compared to three times that many for each of his three immediate predecessors).

This means that Trump has the opportunity to fill over 130 vacancies on the federal bench and, in doing so, drastically reshape the courts with radical right wing judges who will roll back rights, strike down regulations and protect corporate wealth.

While there has justifiably been great attention focused on how the balance of power on the Supreme Court could drastically shift if there are further vacancies during Trump's time in office, the reality is that the lower federal courts -- both the courts of appeal and the district courts -- have enormous influence on the application and scope of federal laws and constitutional rights.  After all, the Supreme Court grants review in less than 2% of the roughly 7,000 certiorari petitions that are filed every year, leaving in place the vast majority of lower federal court rulings for which review is denied.

As Charles Pierce reminds us, Trump "subcontracted the job of picking judges to the Federalist Society, the Heritage Foundation, and various other wingnut intellectual chop shops" and so the scary nature of the first sixteen Trump has nominated should not surprise us.  For example, there's John Bush (52-years old), nominated to the Sixth Circuit Court of Appeals.  Bush blogs under a pseudonym at Elephants in the Bluegrass.  As Dahlia Lithwick describes:
His wide-ranging and unfiltered commentary has included, for instance, the claim that abortion and slavery are “[t]he two greatest tragedies in our country.” His blog posts have cited conspiracy theories and false information, including references to the claim that President Obama was not born in the United States. In his Senate questionnaire, he described the vicious 1991 beating of Rodney King as a “police encounter.” As Eleanor Clift notes in the Daily Beast, he has also gone on record arguing that the Supreme Court made a bad ruling in the landmark freedom of the press case New York Times Co. v. Sullivan.
During his confirmation hearing, according to Lithwick, Bush "apologized for his use of anti-LGBTQ slurs and insisted that once he dons the black robes, he will be a new man."  Right. 

Then there's Damien Schiff (37 years old), nominated to the Federal Court of Claims.  Schiff  once called Justice Anthony Kennedy a "judicial prostitute" and strongly disagrees with the Supreme Court's decision that struck down statutes criminalizing sodomy.  He has criticized an anti-bullying program taught in a California school district, finding it problematic to teach "not only that bullying of homosexuals is wrong, but also that the homosexual lifestyle is … good, and that homosexual families are the moral equivalent of traditional heterosexual families.”  He added that he would have objected to an anti-racism curriculum if taught in Arkansas in the 1950s.

Finally, there's Kevin Newsom (44-years old), Trump's pick to sit on the 11th Circuit Court of Appeals.  Newsom wrote a law review article comparing the reasoning of Roe v. Wade with that of the Dred Scott decision.  As Alabama's solicitor general he defended the Alabama's policy of failing to provide lawyers for post-conviction review of death sentences in a state where woeful representation at the trial level is the norm. And he decried the Supreme Court's ruling that found it unconstitutional to execute juveniles.

That's a pretty dire representative sample.  Meanwhile, many of Trump's other nominations are Scalia acolytes (like Trump's new Supreme Court justice) who believe in an originalist interpretation of the Constitution -- a flawed, result-oriented judicial philosophy that is well outside the mainstream of legal thought.  The consequences for civil rights, voting rights and LGBT rights, for women's reproductive health and health care reform, for enforcement of environmental and Wall Street regulations, for consumers and unions, for gun control and campaign finance reform, and for criminal justice and social justice could not be more bleak.

But beyond judicial philosophy, the more basic issue is whether a president whose very legitimacy has been called into serious question -- whose administration is under investigation for its connections to a foreign power that interfered with the election, for abusing the power of the office and for obstructing justice -- should be able to make lifetime appointments that will influence our legal rights and remedies for generations. 

Even without the filibuster, which is no longer a permissible tool for blocking nominees, there are steps Democrats can take to slow -- if not, shut -- things down while these questions remain unresolved.  Indeed, the Judiciary Committee should have its hands full investigating Russia-gate and related obstruction of justice allegations.  In addition, states with Democratic Senators can still withhold the "blue slip," a tradition that allows home-state senators to block nominees -- and one that Republicans used to stymy 17 Obama nominees.  (Republicans, however, are -- what a surprise -- threatening to do away with the blue slip for appellate court nominees.)     

Democrats cannot let Congress return to business as usual.  That means using every technicality and procedural rule from objecting to unanimous consent requests to forcing roll call votes on every matter.  And it means using every opportunity to speak on the Senate floor to keep Trump's incompetence, instability and corruption at the forefront of our political discourse.  And it means using the Senate rules that encourage free and open debate to force Republicans to answer for their unwillingness to accept Trump's incompetence, instability and corruption. 

Trump has yet to fill an unprecedented amount of vacancies throughout his administration, many of which require Senate confirmation. The tenure of such appointees, however, is generally only as long as the president remains in power, and so the damage they could do, while very real, is at least somewhat circumscribed. (The FBI's 10-year term is a notable exception.)  If Trump is removed from office, those political appointees can be removed too.  Not so with federal judges, who are appointed for life.  As the drip, drip, drip of scandals continue -- while there remains a cancer on the presidency -- there should be no lifetime appointments.

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