Jurisprudence

The Senate Is Giving Trump Loyalist Judges to Shield Him From the Law

President Donald Trump listens to questions from reporters next to Senate Majority Leader Mitch McConnell.
President Donald Trump listens to questions from reporters next to Senate Majority Leader Mitch McConnell as he arrives for a closed Senate Republican policy lunch on Capitol Hill on March 26.
Brendan McDermid/Reuters

President Donald Trump seated his 40th circuit court appointee this week. It is the continuation of a long, slow march toward a judiciary made largely in the image of the most extreme elements of the Republican Party, e.g., the present-day Republican Party. The consequences of this march are profound beyond most Americans’ current comprehension.

Kenneth Lee was confirmed on Wednesday, along a party-line vote, to the Ninth Circuit. The vote came despite the fact that neither of his home state senators returned a blue slip on his nomination, making him the fifth circuit court judge confirmed this year with zero blue slip approval. It’s safe to say there is no “blue slip” process anymore for circuit court judges, an extraordinary shift that has accelerated the radicalization of the federal bench. Before this year, no circuit court judge had been elevated without the approval of at least one home state senator. Respecting the veto of home state senators is part of the reason President Barack Obama left office with so many judicial vacancies, many of which have been subsequently filled by Trump with the most radical contenders he could plausibly push through.

Take Lee, just for instance. Among his college essays on the human condition, Lee had opined that “cries of racism often stem from isolated incidents or from unreliable studies based on statistical chicanery” and that “charges of sexism often amount to nothing but irrelevant pouting.” He has also written that “a scientific explanation exists for the higher incidence of AIDS in the gay community. Homosexuals are more promiscuous than heterosexuals, and thus their risk factor increases exponentially.” Oh, also, he failed to turn over these racist and sexist and homophobic writings to the Senate initially—they were only uncovered in the middle of his confirmation process. And it’s almost an afterthought to note that during his confirmation hearing Lee refused to say whether he agreed with the precedent set by Brown v. Board of Education in 1954—decided 65 years ago on Friday. He’s after all just one of 27 Trump judicial nominees who have declined to endorse the landmark ruling declaring school segregation unconstitutional, a commitment Chief Justice John Roberts and Associate Justice Brett Kavanaugh had no trouble making at their own hearings.

The judiciary—the courts that decide everything from our civil rights, to our voting rights, to whether a president can be placed above the law—will soon be full of Lees.

Not only has Trump broken records in filling judicial vacancies, but he is also on track to fill every vacancy left on the federal circuit courts. With rare exceptions—for the overt racist vote suppressors and self-declared homophobes—no judicial nominee is too extreme or unqualified for Senate Republicans. This week, Sen. Mitt Romney rocked the Senate by voting against a district court nominee who in 2011 called President Barack Obama an “un-American imposter.” But never fear, that guy was then confirmed anyhow. Another nominee was confirmed despite the fact that she too withheld materials from the committee and believes, without any medical proof, that abortions cause cancer. Republicans in the Senate shrugged.

Again, this will all be hugely consequential. It’s not just that Trump judges will—as the story often goes—be sitting on the federal courts for decades to come. And it’s not just that future Trump judges who don’t believe in Brown will make decisions in future cases about the constitutionality of de jure segregation in public schools. And it’s not even just about taking over the courts so as to bless permanent minority rule by way of vote suppression, partisan gerrymandering, and census questions. It’s also a bulwark against the oversight Trump is resisting, today.

This president is in a footrace against congressional Democrats currently seeking subpoenas, tax returns, and an unredacted Mueller report. He is in a footrace against state attorneys general seeking to forestall a pretend national emergency at the border. He is in a footrace against millions of Americans who stand to lose health insurance if the courts kill the Affordable Care Act. And each of those cases will take time—loads of time. And as they play out against the 2020 elections, this president is installing judges at lightning speed. He is doing that, and Senate Republicans are acceding to it, not just because he wants to turn the country into a theocracy, or a museum for lonely ethno-nationalists. He is doing it because his plan to evade judicial oversight requires that he control the refs.

The faster Trump lards up the federal bench further with unqualified party operatives and loyalists, the more likely he is to draw judicial rulings in his favor. He’s already bragged that he owns the Supreme Court, and that if Congress initiates impeachment proceedings he will turn there first to halt it. He can’t do that, of course; it’s meaningless blather. But you can be sure that every federal judicial seat he fills with a loyalist increases the chances that some subpoena, or contempt order, or other judicial intervention, is short-circuited.

If you think that these judges will not act to protect their president, think about how they got their jobs. They are the types of nominees who would hide their most biased and grotesque thoughts and words and then insist when discovered that they were just kidding around. The fact that Trump and Senate Majority Leader Mitch McConnell are seating judges willing to do or say anything to protect their careers should scare us almost more than anything else. These are the people who will be willing to do or say anything to protect the president who nominated them when the time comes. As Lili Loofbourow pointed out earlier this week, inside each deadly dull process and norms-obliterating dispute, there is a poison pill we are forced, as the majority, to swallow. The end of “blue slips”—words that cause the average reader to close the page the moment they appear lest they fall asleep midsentence—is one small fusillade in a larger barrage, in a devastating attack, in an all-out war.

We all want to believe that the courts, writ large, will adjudicate all of the Trump oversight issues in a careful and lawyerly fashion. Maybe. But a good many of Trump’s judicial nominees are neither careful nor lawyerly, and we ignore the change in the composition of the federal bench as a boring “process” problem at our own risk.

On Friday, as just one example of the threat, a federal appeals court found that the president’s rescission of the Deferred Action for Childhood Arrivals program was “arbitrary and capricious” under federal law, partly because DHS “failed to give a reasoned explanation” for the abrupt change in policy. Two judges signed onto that opinion. A third, Julius Richardson, a Trump appointee, dissented, writing, “We the Judicial Branch have a narrowly circumscribed role … It is not our place to second-guess the wisdom of the discretionary decisions made by the other Branches.”

To be sure, while Senate Republicans choose to collaborate in Trump’s refusal of all oversight, there is little Democrats can do right now, beyond, as Loofbourow so ably described it, “appealing to the denatured process that got us here: At least have the decency to strip our rights fairly.” But in the meantime, Senate Republicans’ assembly-line processing of unfit nominees brings Donald Trump closer and closer to the imperial presidency he so deeply craves. This isn’t just about norms violations in the culture wars. This is the president creating a judicial branch built of blank checks made out to himself.