Jurisprudence

Mitch McConnell Is Spending the Shutdown Confirming More Trump Judges

The president’s record-shattering 84 confirmed judges are already 76 percent male and 91 percent white. The next six are also all white men.

Mitch McConnell at a podium in the Capitol, surrounded by Republican senators and reporters.
Senate Majority Leader Mitch McConnell speaks to reporters on Capitol Hill on Jan. 15.
Yuri Gripas/Reuters

Last week, the Trump administration put forth its first new slate of names for federal judgeships in 2019. All six were men, and apparently all six were white, although the White House declined to answer any questions about their backgrounds. Should they succeed in seating these six prospective jurists, President Donald Trump and Senate Majority Leader Mitch McConnell will gain the distinction of having seated only the 3,130th through 3,135th white men to be given lifetime appointments on the federal bench. Historic progress indeed. Late Tuesday, the White House also announced its intention to renominate 51 judges who did not get through the previous Congress. It seems the need to pick up the pace on seating judges is now desperate.

Tuesday was the 46th anniversary of Roe v. Wade. That ruling is ever more under direct assault in the legislatures—the U.S. Supreme Court is now poised to narrow or deny a woman’s right to choose. As Trump packs the federal courts with judges who write openly about “the moral tragedy of abortion” or refuse in written opinions to call abortion providers “doctors” because “the object of their action is not healing but killing,” his defenders continue to claim that there is nothing shocking about the fact that the president’s record-shattering 84 confirmed judges are 76 percent male and 91 percent white, per the Federal Judicial Center. (For comparison, Obama’s confirmed nominees were 58 percent male and 64 percent white.) Not renominated this week was Thomas Farr, the mastermind behind North Carolina’s racist voter suppression laws who was tapped to fill seats for which two black women nominated by Obama were blocked by Republicans. Farr would have been only the 3,130th white man to sit on the federal courts, but his nomination was killed in December by GOP Sens. Tim Scott and Jeff Flake. Had either of these women been confirmed, they would have been the first black Americans to serve in a district that is 27 percent black.

Senate Republicans have also apparently been mulling the idea of a rules change that would allow them to move even faster on judicial nominations, with Sen. Todd Young, R-Indiana, telling Hugh Hewitt on Monday that the GOP conference may soon consider different ideas for ways to cut down debate time on Trump’s mountain of judicial nominees. The government shutdown has now dragged into its 33rd day, but the Republican obsession with jamming judges through continues to comically accelerate. It is starting to have the distinct feeling of a post-apocalypse smash-and-grab, by white men, for white men, to ensure that whatever is left of government post-Trump goes to team Handmaid’s Tale.

Trump’s boosters continue to tell us that there is nothing troubling about the fact that his judicial picks are almost 80 percent male and 90 percent white. It’s essentializing to assume that one’s gender or race makes a difference to one’s judicial fitness and philosophy, they say. Indeed, we’re probably just days out from hearing that, per House Minority Whip Steve Scalise’s, R-Louisiana, logic, the lack of female candidates is Ruth Bader Ginsburg’s fault. (Last week Scalise blamed Nancy Pelosi for the fact that most House Republicans are white men.)

The interest in ramming judges through has only picked up since the midterm elections. “If the Democrats had acquired a majority in the Senate, they could have blocked every person President Trump nominated for federal judgeships,” former House Speaker Newt Gingrich wrote in an op-ed post-election, noting that judicial appointments were “the biggest achievement of Trump’s first two years, and now it is likely guaranteed to continue.” Carrie Severino, the chief counsel and policy director of the conservative Judicial Crisis Network, told Politico at the time that “Executive orders don’t outlast the president, legislation can change, but these judgeships last a long time,” adding that there are “a lot of Never-Trumpers and conservatives who have had to admit, sometimes begrudgingly, that ‘Wow, this has been a home run.’ ”

It’s a pretty nihilist vision, even in a maximally nihilist time, and it comes just as a brain-melting new profile of Mitch McConnell by Charles Homans appeared in this weekend’s New York Times Magazine. Homans points out that McConnell has demonstrated his willingness to essentially break the Senate itself in his quest to ensure that the judicial branch will become the ultimate arbiter of all future policy questions:

The unprecedented number of conservative-approved judicial nominees McConnell has waved through the Senate—a process for which he laid the groundwork before Trump was elected—stands to shift much of the burden of conservative policymaking away from an increasingly paralyzed Senate. In the coming years, battles over voting rights, health care, abortion, regulation and campaign finance, among other areas, are less likely to be decided in Congress than in the nation’s courthouses. In effect, McConnell has become a master of the Senate by figuring out how to route the Republican agenda around it.

Even as he hides from and deflects the devastation caused by Trump and Trumpism, McConnell seems sanguine about the fact that the one institution he truly cares about—and let’s be clear it is the judiciary, not the Senate—will be the thing that emerges from the rubble: As Homans puts it, “The shutdown distilled the essence of McConnell’s position in Trump’s Washington: a man of institutions and establishments whose own legacy was now tied to that of a president who seems hellbent on burning both to the ground.”

In some sense, then, McConnell is behaving perfectly rationally. His approach—screw the shutdown, screw the Russia interference, and screw any attempt to protect the franchise, we will eventually win in the courts—is just a mirror image of the approach many Trump opponents, including myself, have taken throughout the past two years (which is to focus on all that other stuff, because for now, the courts appear to be holding). But while progressives still hope that an independent judiciary will act as a check on Donald Trump, McConnell is taking a longer view—doing something rather more apocalyptic and decidedly more cynical. He continues to pack the judicial branch with extremely young, radically conservative white Christian men who will—assuming constitutional democracy survives—continue to deliver wins on gun rights and anti-abortion rights as well as the deregulation of environmental, consumer, labor, and other safeguards, long after Trump leaves office. These picks will also continue to work to circumscribe the vote itself, through gerrymandering, voter suppression, and limitless money in politics.

McConnell last week penned an op-ed trashing the House Democrats’ effort to protect the ballot box, H.R. 1, an effort to implement what should be bipartisan voting rights and election reforms, which include protecting the Voting Rights Act and improving voter registration and anti-corruption measures. But as he sleeps through the shutdown and bats away voting reform, McConnell is working double time to ensure that his remaking of the judiciary outpaces any improvement on the ways in which we vote. Of all the cynical lines in Homans’ piece, the most gutting may be McConnell’s own observation about the way out of our current political moment: “Well, I mean, the ultimate check against any of this is the ballot box.”

The other line that lingers: “The decision not to fill the Scalia vacancy—I think that’s the most consequential thing I’ve ever done.” Mitch McConnell wants to be judged for having stolen a seat at the Supreme Court from one president and given it to another. And yet McConnell’s utter failure to accept any responsibility for Trump or the Trumpism that came with it isn’t even his greatest sin. His greatest sin is his continued plan to ram through judges while Rome burns, because he wants to ensure that minority-majority rule in America remains in place in case we accidentally survive the havoc wreaked by Russia and the decimation of both Congress and the presidency. He will do nothing to stop any of these things from corroding democratic norms and institutions, evidently in the hope that courts remade in his image can be the last institutions standing.