How Donald Trump Is Filling the Numerous Vacancies on the Federal Bench

Read what Slate’s Amicus podcast asked Kristen Clarke of the National Lawyers’ Committee for Civil Rights Under Law.

This is an Oct. 14 transcript from Amicus, Slate’s podcast about the Supreme Court. These transcripts are lightly edited and may contain errors. For the definitive record, consult the podcast.

Dahlia Lithwick: Hi, and welcome to Amicus, Slate’s podcast about the Supreme Court and the courts in the law. I’m Dahlia Lithwick, and I cover the courts for Slate. This was another busy week at the U.S. Supreme Court, where, despite the fact that the travel ban lawsuit was not argued and then dismissed as moot, which is clearly a win for Donald Trump, the justices heard arguments over whether corporations are liable under the Alien Tort Statute and the scope of the Clean Water Act. But for soap opera fans, there was a fair amount of giggly coverage about the degree to which the court’s youngest justice, Neil Gorsuch, maybe needs to spend a little time in the naughty chair for what seems to be a pattern of cutting off his colleagues and saying things smugly at them.

We wanted to pan back a little bit this week and talk about the federal judiciary, in part because I think this might be the single-most-unremarked win of the Trump era, and it’s a win that will have consequences that last for decades. Donald Trump took office with a whole mess of vacancies, and we wanted to talk to somebody who could explain to us how Trump is, under the radar, transforming the federal bench. This seems like eye-glazing inside-baseball stuff, but it really isn’t.

I’m so delighted that my guest this week is Kristen Clarke. She’s president and executive director of the national Lawyers’ Committee for Civil Rights Under Law. You can call it the Lawyers’ Committee. She’s also one of the sharpest court watchers in the country. Welcome, Kristen, to Amicus.

Kristen Clarke: Oh, thank you so much for having me.

Lithwick: Did anything I just said strike you as wrong? I mean, is it true? Am I right that, under the day-to-day radar of explosive stories, there is this absolute relentless drumbeat of federal judicial appointments that are quite dramatic, even though they’re not dramatic?

Clarke: This is a huge issue that many people are not paying attention to, but almost a crisis-level issue if you think about the number of vacancies that exist across our federal court system right now. There are about 150 federal court vacancies. This matters so much when you think about the kinds of cases and controversies that are handled in our nation’s federal courts.

The Muslim ban case is a prime example. This is one of the most horrendous and discriminatory actions that we have seen by this administration. The use of an executive order to prohibit people from entering the country from predominantly Muslim nations has set off a firestorm of controversy. Our organization, the Lawyers’ Committee, and a number of other groups, have brought challenges in the courts challenging the Muslim ban. There are a range of other actions that this administration actioned that have wound up in the courts.

This president, President Trump, will get to name dozens of nominees to many vacant courts around the country. It’s an issue that we have to pay attention to because, at the end of the day, Americans deserve judges who will handle and treat the cases that come before them fairly and with independence.

What we’ve seen so far from this president suggests that he’s very focused on naming young, radical ideologues to the courts, people who are far outside the mainstream, people who I fear may not be able to fairly interpret and apply the law, and many people who will bring with them a partisan agenda that they seek to execute while on the bench. This is an issue that impacts all Americans, and one that we have to pay close attention to.

Lithwick: Kristen, before we get started too deep in the federal judiciary, talk a little bit about Neil Gorsuch. I mentioned in the intro there’s been a lot of muttering about him this week. You testified at his confirmation hearing. Can you talk a little bit about what you witnessed in the last couple of months?

Clarke: Well, one, the opportunity to testify at his confirmation hearing truly, for me, reinforced just how important these confirmation hearings are. I was disturbed at the pace of those hearings. Some of the senators were deeply engaged in rigorously reviewing and examining his record, understand the kind of justice he would be on the Supreme Court. Others were very tuned out. I think that the confirmation process is an important one, and I hope that as we move forward with nominations to the district and circuit courts, we’ll have a Senate that is deeply engaged in doing its job on both sides of the aisle.

One of the concerns that I raised during the confirmation hearing were real questions about whether Judge Gorsuch had and would have the ability to fairly interpret and apply federal civil rights laws, given some of the cases that he handled on criminal justice and other issues while on the circuit court. So far, I think that those concerns have indeed proved to be valid. This is our first full term with Judge Gorsuch on the Supreme Court. He started in the midst of the last term, but already we’re seeing a lot of indications that he is somebody who is like Justice Scalia. He’s somebody who aligns closely with Justice Scalia.

This, I think, raises real questions about the incredibly important civil rights cases on the court’s docket this term, cases concerning LGBT equality, partisan gerrymandering, vote purges, and other issues, and truly underscores how important it is when we think about our federal district and circuit courts that we have judges who don’t bring with them an agenda, but instead are judges who can truly be independent in applying the law.

Lithwick: It’s worth saying that all the attention that we put on the U.S. Supreme Court, and it’s terrifically important, and Merrick Garland and Neil Gorsuch, most of us know about that, but let’s be honest and recognize that the courts of appeals are actually the last stop for about 95 percent of the federal cases. The court takes, what, 100, less, cases a year. Actually, the determinant of what the law is in this country, for the most part, is not the Supreme Court; it’s the federal appellate bench, correct?

Clarke: That’s true. The Supreme Court does overshadow the federal district courts and the federal appeals courts, but many, the vast majority of cases and controversies, end up being resolved by judges who sit on those courts. It’s why we’ve got to care about the 150 or so vacancies that are out there and that President Trump is actively working to fill right now.

Lithwick: Kristen, before we move forward with the actual numbers, because they’re pretty startling, I do want to push back and say what we’re going to hear in response to what you’re saying is, “Look, this is a game both sides can play,” and that when Obama came into office, he put radical ideologues from the left on the court, that, “Well, you’re saying that the Republicans killed the filibuster, but actually the Democrats killed the filibuster.” Bork, Bork, Bork, Bork all the way down. Can you help me understand, if I want to think about this in a neutral and fair fashion, why what Trump is doing right now is any different from what Republicans would say Obama did last go-round?

Clarke: Yeah. I guess I would disagree with that characterization. I think that President Obama was very mindful of finding judges who could be fair and independent and, at the end of the day, could draw some margin of bipartisan support.

One of the long-standing traditions that has been used in the judicial nomination process is the use of blue slips. These are literally blue pieces of paper that, by tradition, not by Senate role, must be returned to the Senate judiciary committee by the home state senators for a nominee, the idea being that senators would best know the judges who were being nominated, or the individuals who are being nominated, to the bench from their respective states.

During President Obama’s term, you had folks like Senator Mitch McConnell who urged, who pleaded with President Obama to not abandon the blue slip tradition, and they didn’t. At that time, Senator Patrick Leahy led the judiciary committee, and the blue slip tradition process was adhered to and followed consistently and helped ensure that fair and independent judges would get through the process.

About 18 of President Obama’s judicial nominees were not able to proceed, but many others were. I think that the blue slip tradition helps ensure that judges are properly vetted and that judges who fall within the mainstream are the ones who ultimately make it onto the bench and make it to this lifetime-appointed position.

Lithwick: Underneath what you’re describing is, again, this is a century-old, seemingly arcane Senate tradition, this gentlemen’s club effort to do something other than shear power when looking at the federal judiciary, but underneath that, there is … This week, Mitch McConnell told the Weekly Standard on Tuesday that, “We’re done.” He’s doing away with blue slips. They’re just nothing. It’s a symbolic gesture. From now on, they’re immaterial.

His spokesman seems to have walked that back a little bit on Wednesday. I think that somewhere in the Senate Republican land, there is a conversation about whether to, in fact, do away with blue slips.

This is not a rule; this is a norm. This is just a courtesy. I imagine that in much the same way that we did away with the filibuster for Supreme Court nominees a few months ago, we can just do away with the blue slip, and there’s not much that Democrats can do to push back, right?

Clarke: What’s unfortunate, we shouldn’t be so quick to abandon long-standing rules and traditions that have governed how our Congress operates. When we’re talking about judges who enjoy lifetime appointments, lifetime tenure, we should have close and careful bidding.

One of the things that I think we sometimes do is we don’t explain fully how the blue slip tradition process works. When we hear talk of Senator McConnell kind of quick to walk away from the courtesy, there may be some people who think, “Oh, yeah. It’s just a courtesy.” But, again, this is a long-standing practice that empowers every senator, irrespective of their party, to help determine which judges get confirmed for local judgeships in their states. It’s a final check to ensure that the courts reflect the actual communities that they serve. It’s one way to filter out people who may just fall too far outside the mainstream.

I think we want a process where senators are working to find consensus around judicial nominees. We want judicial nominees who can enjoy some degree or some level of bipartisan support. To me, it’s more than a courtesy. It truly is an important tradition and one that senators should not be quick to turn their back on.

Lithwick: I think I would add to what you’re saying, Kristen, that there are states that have tried to pick their way through what tends to be this intractable fight about judges by creating bipartisan commissions that actually work fairly well to do what you’re saying, which is we get a bunch of people across the aisle, we have them hash out who they could both compromise on.

I think one of the blue slips that’s at issue right now, Senator Merkley has said, “We have a commission here,” and Trump is just ignoring a commission that has picked Republicans and Democrats and seems to be taking the temperature down. That’s a piece of it, too. It’s not just home state senators, but, in some sense, home state senators trying to respect systems that their states have set up to de-escalate what looks like mutually assured destruction, right?

Clarke: That’s right. When we take a step back and think about what’s happening further, the other devastating development this past year was the White House ending the use of the American Bar Association’s role in vetting judges.

For many years, the ABA has played a critical role in producing reports that help ensure that judicial nominees, or explain whether judicial nominees, meet some real basic criteria. Even when they reviewed the record of Judge Neil Gorsuch, they gave Judge Gorsuch the Bar Association’s highest rating, but, nonetheless, the White House has decided to cut them out of the vetting process, and instead what we see is that they’re now working and consulting closely with groups like the Federalist Society to identify nominees.

The ABA is one of our country’s oldest and largest membership groups. It represents lawyers of all political stripes on the left and on the right, and the reports that they have been produced have been incredibly valuable in vetting nominees and helping the public understand whether or not nominees meet basic threshold criteria.

In so many respects, we’re seeing traditions thrown out the window. I think all of this presented a dangerous scenario in terms of thinking about the transformation of the courts that could happen in the road ahead.

Lithwick: Let’s talk about the actual numbers, because I think this is maybe a way to measure the difference between Trump and the people who’ve come before. As you said, he came on with about 150 vacancies. He’s already named 60 people, I think, for federal judgeships, seven have been confirmed. No president before Donald Trump had named even three judges in the first six months. He’s named nine.

This is going to more than double the number of federal judges picked by anyone in their first year. The pace, the breakneck pace, is in such contrast to President Obama, who, I think it’s fair to say, was quite slow to start up his judicial-nominations machinery. Is this just one of those “make hay while the sun shines” things where everybody agrees that the one thing we can do is fundamentally transform the courts; let’s do it superfast while no one’s looking?

Clarke: There appears to be a real strategy under way. What they’re doing right now is working on filling the open vacancies in states where you have two Republican senators, and presumably where you’ll have no issue in terms of securing two blue slips for a potential nominee. They’re also lining up multiple nominees on the same day, which prevents the public from getting a real opportunity to learn and understand who these nominees are and really prevents the senators from doing their job in reviewing the nominees that come before them.

I was struck, for example, by the fact that they scheduled the hearing of Eric Dreiband, the nominee to lead the Civil Rights Division at the Justice Department, on the same day that they were considering several other judicial nominees. They are indeed racing forward at lightning speed. They’ve got a strategy in place in terms of the states where they are starting. As a result, we’re seeing a lot of nominees who are moving through the pipeline, who bring with them some really frightening records.

Among them are folks like John Bush, who was nominated for a vacancy in the 6th Circuit. He’s out of Kentucky. He’s somebody who’s, in his writing, he’s compared slavery and abortion and described these two events as two tragedies in our country. He failed to disclose on a questionnaire that’s reviewed by the Senate Judiciary Committee the fact that he belongs to a social club in Louisville, Kentucky, that had a long history of excluding African Americans, women, and Jews.

There are also nominees such as Damien Schiff. He’s somebody who drew headlines when he described Supreme Court Justice Kennedy as “a judicial prostitute.” He’s somebody who also has troubling views on LGBT issues. He once criticized the school district for teaching that homosexual families are the moral equivalent of heterosexual families, arguing that that, in his view, remains an open question.

These are people who I think should be carefully and closely scrutinized so we can understand whether, if placed on the bench, they can have the capacity to fairly interpret and apply the law and fairly interpret and apply federal civil rights laws. But because of the fast pace at which all of this is moving, we’re seeing some real radical nominees advancing through the nominations process.

Lithwick: Kristen, you just mentioned Damien Schiff, you mentioned John Bush. I guess I would add to the pile Jeff Mateer. He’s now been nominated to the U.S. District Court for the Eastern District of Texas. He’s described transgender children as “part of Satan’s plan.” You’re describing—I’m describing bloggers. These are not people who have what one would consider as judicial background and temperament. These are people who, as far as I can tell, write and speak polemical screeds.

In that sense, what I want to ask you is what do we make of the fact that then they come up for their hearings and say things like, “Oh, you can’t put any weight into stuff I said or wrote. I was just being mean. Now I’m going to put on a judicial robe and become this transcendent visionary of neutral legal application”?

I mean that seems to have been the pattern we saw with Schiff and with Bush in their hearings. It seems as though they’re trying to say, “Even if you question me closely on my paper trail, it doesn’t matter because something magic will happen when I become a judge, and I’ll suddenly be a different guy.” How do you even answer that kind of claim?

Clarke: Well, the words that people utter, the writings that people have published, all of these things matter and inform and shape the record that nominees bring to them when they go before the Senate for review. I think it’s a mistake to turn a blind eye to those things. They lend insight into the kind of judge that they will be when they put on that black robe. It provides some insight into their likely judicial philosophy. They can help the Senate and the public understand whether or not they truly are independent.

At the end the day, we want judges who won’t bring with them preconceived views about the facts that come before them, preconceived notions about what the law requires. You want judges who really are independent. It’s not something that every American has the capacity to do, but you really have to be able to look at the facts that come before you and make decisions that are based on the facts within the four corners of the documents and the testimony presented to the court.

I worry that a lot of these radical individuals with fringe views don’t have that capacity and are really making their way onto the bench to advance a political agenda, one that we’ve seen espoused in their statements and their writings prior to being nominated.

Lithwick: I want to give you a chance to respond to, again, the proposition that, “Well, but Barack Obama put up radical—he put up radical women on the D.C. Circuit. He flipped the 4th Circuit to the extent that Donald Trump lost the travel ban. There’s no difference, that this is just what presidents get to do.” What’s the answer? Is this a difference of kind of degree, of scale, or is it just that both teams play this way?

Clarke: Well, the one thing that I think President Obama did was address the fact that there are certain minority groups that have been long unrepresented on our nation’s court. He did a great job, I think, in advancing judicial diversity. He named and ultimately appointed record numbers of African Americans, Latinos, women, and Asian Americans to the bench, to the extent that people equate diversity with the notion of being radical.

I guess I would dismiss that notion. I think that he has helped to balance out the courts and address the collective failure of presidents before him, ensuring that our courts reflect the growing diversity of our nation. At the end of the day, if we want the public to have confidence in the work of our courts and in the rulings issued by our courts, we want to have courts that reflect our nation and reflect the diversity of the communities in which they fit.

I think President Obama was somebody who was truly sensitized to the work that needed to be done to close those gaps. If that’s being radical, I guess he was radical. I’m glad that he was, because what we’re seeing now is essentially the whitening of the courts. President Trump has made clear that diversity is not at all a priority for him. We’ve not seen many women on his slate of nominees, much less people of color. I am deeply concerned about the fact that we’re at a moment where we are absolutely turning the clock back.

Lithwick: To which I would add, these are young nominees. These are significantly younger. There are folks who are being tapped who are in their 30s and 40s, so we’re not talking about a 20-year tenure on the federal bench. We can be talking about a 40-year tenure. That also makes a difference over time.

Kristen, before I let you go, I want to give you a chance to answer the question that I think about, and we’ve thought a lot about this on the show, which is why is it that the Republicans have been so energized around issues of the court, not just the Supreme Court, but, as you said, the lower courts? Democrats have really had a hard time connecting the dots between a presidential election, a Supreme Court vacancy, elderly judges at the Supreme Court who need to be replaced, and this issue of the federal bench really being transformed before our eyes. Democrats seem to have somehow hit snooze on this.

Clarke: I think that right now there’s a lot of noise out there, and the public is deeply focused on the actions that we see every day from this administration. Every day we’re seeing reversal on policies from the Obama era. We’re seeing new executive orders that are turning the clock back on progress. We’re seeing white supremacists marching in the streets who don’t seem to be fully confronted by this administration or the Justice Department.

Those are the issues that I think have really consumed national dialogue and attention, but it’s important to remember that many of the dangerous actions that have been undertaken by this administration are resulting in litigation by civil rights groups like the Lawyers’ Committee and others. These are cases that are being heard often and tried before our federal courts.

We’re talking about cases concerning the Muslim ban, concerning sanctuary cities and the threats to take away funding from sanctuary cities, battles that are brewing over voting rights. Last week, we saw the elimination of the contraceptive mandate. All of these issues that are front and center for the public actually have litigation that are coming right behind it, which is why we can’t ignore what’s happening with respect to the transformation of our courts.

One hundred and fifty vacancies, or somewhere thereabout. That’s a lot of individuals who ultimately will enjoy lifetime appointment and who can have impacts that we’ll feel for generations. We’re watching closely to see who these nominees are, we’re watching closely at the fact that we’re turning the clock back when it comes to diversity, and urge the public to be engaged in this process.

At the end of the day, the senators do have a job. They do have an obligation and a constitutional responsibility to fully and fairly evaluate these judicial nominees, and the public should speak up, speak out, and reach out to their senators when they learn about nominees that fall too far outside the mainstream.

Lithwick: Kristen Clarke is president and executive director of the Lawyers’ Committee for Civil Rights Under Law, one of the country’s most important national civil rights organizations. She watches the judicial branch closely, and we need to, as well. Kristen, it was a pleasure having you on Amicus this week.

Clarke: Thank you for having me.

Lithwick: That is going to do it for this week’s episode of Amicus, the “All Judicial Politics” edition.