Jurisprudence

The Judges Republicans Are Doing It All For

Trump nominated his fifth judge rated “not qualified” by the American Bar Association this week. She’s never tried a case.

A judge's robes on a hanger.
Photo illustration by Slate

Back in 2016, when a lot of otherwise decent people pulled the lever to elect Donald Trump president, they claimed to have done it solely for the judges. By the same token, a good number of then–“Never Trumpers” have reverted to Team Trump, again, because of the judges. Members of the Trump administration, like his former White House Counsel Don McGahn, who have showed tiny filaments of courage in standing up to him for the rule of law, nevertheless silently allow Trump to fillet the Constitution and American prestige and influence abroad, and why? Because of the judges. If you’ve stuck with Trump for the judges until now, you are currently playing the dangerous game of “How Many More Judges Can They Ram Through Before Democracy Breaks?” The theory is that teeing up the murder of Kurdish allies and inviting foreign election interference is all worth it, because of the judges.

It’s not news that Trump has made packing the federal courts with the youngest, most radical, least qualified jurists ever seen a priority. Nor is it news that this project has been singularly successful because it was contracted out to effective outside groups, and because Senate majority leader Mitch McConnell now cares about no other. Last week, the Senate advanced the nomination for a lifetime tenured position of a 37-year-old associate professor, who had been rated “not qualified” by the American Bar Association. Justin Walker, the prospective judge in question, has never tried a case. He’s never been co-counsel in a case. His principal qualification for a federal district court judgeship seems to be his important legal work spent “conducting over 70 interviews in which he challenged the account of Christine Blasey Ford.” He’s a TV judge whom Mitch McConnell somehow touted as “unquestionably the most outstanding nomination that I’ve ever recommended to Presidents to serve on the bench in Kentucky.” Despite his lack of any judicial qualifications and the once-rare not-qualified ABA rating, every Republican on the Judiciary Committee voted to advance his nomination while Democrats broke against him. As Jennifer Bendery noted here, “in his entire eight years in the White House, President Barack Obama didn’t nominate anyone to be a lifetime federal judge who earned a ‘not qualified’ ABA rating.” Walker was Trump’s fourth. And on Thursday, the Senate is poised to vote on the fifth, Sarah Pitlyk, nominated to a seat on the U.S. District Court for the Eastern District of Missouri.

Like Walker, Pitlyk hasn’t generated much attention, despite the fact that she too has no trial experience whatsoever, which is what earned her the ABA’s not-qualified rating. “Ms. Pitlyk has never tried a case as lead or co-counsel, whether civil or criminal. She has never examined a witness,” the ABA said in a letter to the Senate Judiciary Committee. The absence of any work in litigation was once disqualifying for putative nominees, even in the eyes of some Republicans (you may recall that Sen. John Kennedy (R-Louisiana) was once bothered by such trivial matters). Now the fact of no experience is used by defenders to say that others with thin records have been confirmed so why not? We have now reached a newer threshold, in which Senate Republicans object not to a nominee’s lack of judicial experience, but only to their failure to hew perfectly to the Federalist Society template for judicial acceptability. The no-litmus-test party has become unwilling to support anyone who departs from its new litmus test. Halil Suleyman “Sul” Ozerden is thus not deemed sufficiently captive to be confirmed to the 5th U.S. Circuit Court of Appeals.

Like many nominees who have been advanced before her, Pitlyk’s primary legal work has consisted of attacks on abortion rights, tempered by attacks on constitutionally protected contraception rights, leavened by other attacks on abortion, and supported with her work defending David Daleiden—the author of a vicious smear campaign against Planned Parenthood, based on fake videos of Planned Parenthood officials appearing to negotiate the sale of aborted fetal body parts. These are all claims that were later debunked by a Republican-led House Oversight Committee. Criminal charges were brought against Daleiden. Yet Pitlyk’s biography proudly notes that she was “part of a team defending undercover journalists against civil lawsuits and criminal charges resulting from an investigation of illegal fetal tissue trafficking.” In last year’s Box v. Planned Parenthood, Pitlyk made the transparently false argument in an amicus brief that abortion and birth control are based in the eugenics movement and urged that: “The eugenic origins of the birth-control movement—the progenitor of the abortion rights movement—are well-established” and “Given its strategic location of abortion clinics near minority neighborhoods and its blatant marketing of abortion to the minority community, the abortion industry’s claims to bear no responsibility for the staggering numbers of minority abortions beggars belief.” That claim has been roundly debunked as false.

Pitlyk’s biography also boasts that she worked to defeat an “abortion sanctuary city” ordinance in St. Louis and that she’s done “several landmark pro-life and religious liberty cases.” Let’s flag also that she is up for a judgeship in Missouri, where threats to the survival of the only remaining clinic in the state launched street protests earlier this year. As Eleanor Clift has written, Pitlyk’s work has opposed in vitro fertilization, having authored an amicus brief opposing a California statute that protects the right to assisted reproductive technology, claiming that “surrogacy has grave effects on society, such as diminished respect for motherhood and the unique mother/child bond; exploitation of women; commodification of gestation and of children themselves; and weakening of appropriate social mores against eugenic abortion.” Pitlyk has argued that frozen embryos should be considered human beings as a matter of law. She also, according to this reportargued in 2018 to a federal appeals court that “a federal judge should be disqualified from overseeing a case, based on a Facebook profile of the judge’s wife as well as the judge’s prior position on the board of a health clinic that donated space to Planned Parenthood.”

In her September hearings before the Senate Judiciary Committee, Pitlyk shrugged off this entire career in advocacy work in opposition to Planned Parenthood, abortion, contraception, IVF, and surrogacy, with the claim that “I stand in a long line of other people who have sat at this table who have had histories in advocacy or in issue-related advocacy or in politics and who have become very distinguished jurists.” Certainly, many former advocates have been elevated to the federal bench. But her claim that her personal views wouldn’t affect her judicial performance are part of the madness of the current age. The only piece of truth in this entire charade is that Trump appoints those whose sole qualification to be seated is the guarantee that they will end reproductive freedom, and yet they first have to lie about this to the very people who will vote for them based on the fact that they will end reproductive freedom. Pitlyk has crafted an entire career on the promise of nullifying women’s autonomy and freedom. She should have the courage to be truthful about that one thing, at minimum.

It’s easy to say that none of this merits our concerted attention because, until and unless Democrats gain control of the Senate—something that is suddenly less impossible to imagine but still, a long shot—there is absolutely nothing that can be done to slow the smash-and-grab pace of judicial nominations, which trucks along ever faster as Mitch McConnell gives up on doing any legislative work at all. Democratic presidential candidates aren’t talking about the decimation of the federal bench enough, even as Donald Trump has now seated one-quarter of the federal appeals courts and one-seventh of the federal district courts. My friend Elie Mystal is correct to say that there is no point in even talking about the Democrats’ plans for the Supreme Court, unless they have plans to thwart Mitch McConnell, because: “If you don’t have a plan to get your plan past McConnell, then you really don’t have a plan—you have a wish.”

With all due respect to those who wish to pretend that the unqualified, inexperienced, or wildly ideological Trump judges are just like the judges any other Republicans might have seated, or that it’s bad for the judiciary as a whole to comment on which president nominated which jurist, if we can’t complain about judges who explicitly carry water for the worst legal impulses of the Trump presidency or who are demonstrably lacking in any judicial qualifications beyond TV appearances insisting that Mitch McConnell is amazeballs, we are doing McConnell’s work for him. Standing up for an independent judiciary actually means facing the reality that a great many of Trump’s nominations aren’t independent jurists.

Women who have been focused on the Supreme Court should remember that Roe v. Wade isn’t merely on the line this term thanks to the two new Trump justices. It’s also on the chopping block in the states thanks to advocates like Sarah Pitlyk who have quite literally constructed entire legal careers on the promise to end it, by pushing unconstitutional six-week bans and patently false claims about the eugenics movement. Senate Republicans who advance zealous anti-choice, anti-contraception, anti-IVF, pro-fake-sting video candidates deserve our focused, unflinching attention, not just despite impeachment fever, but because of it. These legislators  have declined to legislate. Instead, they have put up with all of Donald Trump’s erratic, dangerous, lawless, and unconstitutional actions. They have done this because of the judges—and these are precisely the judges they wanted to seat. That should play out on the front pages today, and not years from now when we realize what has been wrought.