The Dangers of Trump’s Lower Court Judges

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S1: So we have to come up. We have to pick a great one. We have to pick one that’s going to be there for 40 years 45 years. We need intellect.

S2: We need so many things to go. You know there’s so many elements go into the making of a great justice of the Supreme Court. You got to hit every one of them.

S3: We passed a resolution that sets the rules for the public stage of this impeachment process. Very soon the American people will be able to see and judge all of the evidence that I have seen in in these depositions.

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S4: My father put the transcript out read it. Everything else is opinion. You read the transcript and make your decision from there.

S5: Hello I’m Leland could I was here from Los Angeles California it’s a pleasure to be back hosting Trump guest President Trump never misses an opportunity to miss an opportunity this week when the president actually deserved praise for the operation that saw ISIS leader Abu Bakr al-Baghdadi cornered until he committed suicide killing by the way two of his children in a brutal blast Trump still managed to snatch defeat or at least controversy from the jaws of victory he offered first of all an inaccurate account of the operation then unnecessarily provoked a backlash by crassly describing Baghdadi’s death and use the occasion as he normally does to make a political point when brief and sober would have been enough. Trump just couldn’t help himself. And then as he usually does. Trump took things to one of his favorite territories the land of the absurd. Trump tweeted a photo shop picturing which he’s placing a medal around a dog’s neck. American hero. It read the dog in question was indeed heroic. It was one of the dogs that joined the raid on Baghdadi’s compound but he certainly did not receive a medal of honor with a pall on it. It’s possible it’s always possible that the president was just joking I mean he has such a famous and refined sense of humor. It is also possible that he was not joking. One never knows with Trump. In any case the original. The real picture had Trump honoring Vietnam veteran James McCloud and in 2017 for the record McLagan apparently has said that he wasn’t bothered by the president’s tweet. In any case it was the perfect conclusion to what should have been a clear victory for a man who sometimes just can’t seem to find a way to moderate his worst impulses. Well listen Trump isn’t always so careless in other areas of American life far from the limelight of social media Twitter and the like. Trump has been methodical. If he is defeated next November. His impact on American public life could end up being limited. But there are instances while the country has been discussing other things while the Democrats are moving forward on impeachment. There are other instances in which Trump has already left his mark. None is more relevant than the way his administration has aimed to transform the country’s courts. Trump has appointed one in four of the nation’s federal appeals courts judges for example. He has as we know also appointed two conservative white men to the Supreme Court very conservative white men to a Supreme Court tipping its balance for a generation. Trump has been remarkably methodical in his selection of judges most of them three out of four almost are white males all of them are conservative. Some of them are true radicals. Slowly more moderate conservative voices judges have been replaced with more radical judges who are simply not afraid to lean in ideologically. And this is obviously very concerning leaning politically. Like so many other things in American life Trump has corrupted the judiciary’s independence or at least tried to corrupted it might lead to years of a dangerous disconnect between what Americans believe and cherish and what the courts decide to strike down or uphold a fracture between American public opinion and its judiciary.

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S6: Dangerous my lead colleague Mark Joseph Stern is an eloquent observer of the country’s court system and its peculiar dynamics he has recently begun analyzing for Slate. Trump’s judges and gauging their impact present and future. Mark welcome. Thank you so much for having me on. Great to have you with us. So you’ve said Mark that Trump’s most enduring legacy will be the judges he has appointed. How so.

S7: No question that will be his legacy because long after Trump has left office whether that’s in 2021 2025 these judges will remain on the bench and today nearly one in four appeals court judges in the federal judiciary was appointed by Donald Trump. Now these are positions with lifetime tenure these judges are insulated from the political whims. And so it basically means that in to 2050 and even the 2016 is we are guaranteed to have Trump judges at the helm of our judiciary making extremely important decisions for our political and judicial systems.

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S6: Would you say this has been the most severe consequence of the 2016 election in American public life.

S7: Absolutely. For a few reasons first of all there’s the fact that Trump has stacked the lower courts with so many judges. Again as I said one in four appellate court judges and so many in the district courts. But of course the 2016 election also allowed Trump to appoint a Supreme Court justice. It allowed him to put Justice Neil Gore search on the bench and then the next year. Justice Anthony Kennedy stepped down and Trump replaced him with Brett Kavanaugh that is going to be one of if not the most consequential swaps in the history of the court because Well Justice Kennedy was a swing vote who had some moderate and some genuinely liberal views. Justice Kavanaugh is extremely conservative and shores up a five justice majority to drag the law very far to the right.

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S6: Most people focus mostly on the Supreme Court whereas you just painfully reminded those Comcast appointed two very conservative justices. But Trump’s impact clearly like you’ve said goes beyond it. Which of the judges he has appointed to the lower courts worries you the most. You opened your series on his appointees with Judge James Holm whom you called a reactionary laser.

S7: Yes. So James how is a judge who Trump placed on the 5th U.S. Circuit Court of Appeals. He is from Texas and he was actually pretty qualified for the position. He seemed like a decent nominee but as soon as he got on the bench he began acting like a kind of Ben Shapiro type troll in robes. He wrote that rich people have a constitutional right to buy elections to protect themselves from government regulations. He called abortion a moral tragedy with no grounding in the Constitution. He claimed that the way to prevent mass shootings is to shield cops from lawsuits when they shoot innocent people. I mean this guy is really far out there and takes these views that have again really no basis in Supreme Court jurisprudence or constitutional law. They’re just his own political preferences and he imposes them on the country through his decisions which are often fiery and troll ish and very unprofessional. And I think I’ve sort of come to see Judge Ho as representative of this broader crop of Trump judges who are entering the bench today who don’t even pretend to be moderate or unbiased. As soon as they get confirmed they just go all out as reactionaries as trolls and don’t even have a pretext of independence they seem like they’re all in for Trump all in for Republicans and they want to change the law. Drag it to the right as quickly as they possibly can.

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S6: He is particularly reactionary when it comes to fighting any attempt at gun control right.

S7: Yes that’s right. So this is another common factor among so many of Trump’s judges. Judge ho basically doesn’t believe that any government regulation of firearms is constitutional. He’s written his opinions that seem like dog whistles to NRA extremists suggesting that he doesn’t think even really simple long standing regulations on who gun dealers can sell firearms to that those might be illegal. And this is something we’ve seen elsewhere. Trump appointed a judge to the Third Circuit judge babies who said that states have no power to ban high capacity magazines or assault weapons. These are guns that are so frequently used in mass shootings that that allow a shooter to fire off you know dozens of bullets in a very short time span to kill as many people as possible. And this judge said Oh well we haven’t had enough mass shootings to justify these bans so states don’t get to make this call. People just have to suffer incredible.

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S6: You’ve described Holmes a steel brief tenure as almost absurdly the same too and I’m quoting you although you really said it just a few seconds ago these same two trolled progressives. Do you think that’s what motivates him. I mean what feeds the troll ideology is is this about ideology.

S7: A huge part of it is ideology because there is a lot of resentment among the younger conservative legal SATs those who emerged from the Federalist Society which is this organization of conservative lawyers led by Leonard Leo who are actively choosing judges for Trump. There is a reason why so many of these nominees have come out of the Federalist Society. And it’s because the head of the Federalist Society is selecting judges for the Presidents. Trump has basically outsource this job to the Federalist Society. And if you go to their conventions if you go to a Federalist Society meeting you hear so many grievances so much resentment about how they feel sidelined. They feel even victimized by the fact that they haven’t been in control of the judiciary for so long. They feel like they deserve to be in control that progressive and centrist jurisprudence is illegitimate and that they are the ones who will restore the Constitution to greatness. You could even say they want to make the Constitution great again and they feel like Trump is helping them take this position of dominance and once they get on the bench they’ve had so many years of anger and rage building up that it’s almost like it all explodes at once. That’s what seem to happen with judge how he got on the bench and finally he got to start writing these poison pen letters are aimed at the heart of so many progressive policies. So it feels to me like the trolling comes from a place of insecurity and anger that’s built up over time where these guys feel like they should have been at the wheel this entire time. Now that they’re driving the car they’re going to ignore the speed limits.

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S6: Judge Hall was confirmed with every Republican vote in the Senate plus three Democrats who then lost their elections. Why are Republicans supporting such radical nominees again for conservative Republican politicians. Is this a purely ideological fight or is it something else. I mean how do you explain it from the politics of it.

S7: Well I think that most Republicans know what Donald Trump knows which is that there is a huge faction of the Republican Party that mostly cares about the courts think about social conservatives and evangelicals and also to some degree gun rights activists who who recognize that they can achieve many of their preferred policies through the courts even if they lose complete control of the legislature even if they lose Congress and state houses they can still enact their ideas through the judiciary and they know that as I said these judges are going to be on the courts for life. So if you’re a Republican in the Senate and you’re supporting Trump because of course he’s the president he’s a leader of the Republican Party. You’re looking at the Republican base and you recognize some of them may really care about guns. Some of them may really care about banning abortion some of them may have other ideas they may hate taxes whatever. But what unites them is the understanding that much of what they want can be achieved by judicial fiat. It can be done through Supreme Court and appellate court decisions. And so they are sort of joining hands with Trump. Even Trump’s critics in the Republican Party will gladly praise him for his judicial nominees because they all recognize that they won’t really say it out loud most of the time but they all recognize that these judges are going to be implementing Republican policies for the rest of our lifetimes. So that is both ideological and political I think it’s a little bit of both.

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S6: One of the keys to a healthy democracy and it should go without saying should be the independence of judges on the bench if not ideologically because hey I understand they I mean ideologically it may be slightly complicated at least politically. I mean at least at the very least what some of these judges Trump has appointed like you you’ve described for us are truly partisan. And again one thing is to be an ideologue and another to play politics in such an overtly partisan way. Is this a fairly new phenomenon.

S7: I would say so. And if you look at many of say Barack Obama or Bill Clinton’s nominees some of them had backgrounds in progressive advocacy but a lot of them were law professors a lot of them were scholars and say attorneys for firms that didn’t have a particularly partisan valence whereas Trump is really going in and reading the back bench of the Republican farm league I mean this is the roster of judges he has selected and successfully passed through the Senate. Many of them come from basically state attorney general’s offices that are super conservative that are extremely political that are constantly trying to overturn Roe v. Wade to overturn marriage equality. Many of them come from a very far right corner of academia and join the Trump administration before getting onto the bench. Trump has a pageant for nominating his own lawyers to the bench. This is not something that most past presidents have done. Trump loves to select White House attorneys and attorneys from his various agencies and try to get them onto the bench for life. It’s almost like a reward for their good service and that just really isn’t something that you saw at least four past Democratic presidents. And even to some degree George W. Bush. Bush appointed many conservatives.

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S6: Mark is there any progressive equivalent to this dynamic you’re describing in the history of the red states.

S8: I don’t think so and I think the reason why is that there is no real progressive equivalent to the Federalist Society. The reason that Trump is able to locate all of these extremely conservative reactionaries and sort of elevate them and build support for them and put them on the bench is because the Federalist Society has spent decades waiting for this moment. These these people and they’re mostly white man they’re mostly heterosexual white men. They were basically hatched in Federalist Society labs. They have been groomed for their entire professional lives for this position for this moment. And so as soon as Trump entered office all he had to do was ask for a list of names and there they were and he could start pushing them through. Democrats just don’t have anything like that. There are certainly progressive legal groups out there like the American Constitution Society but they aren’t training grounds they aren’t laboratories for judges. The way that the Federalist Society is and so perhaps if there were a real liberal equivalent of the Federalist Society then we would see this on the left. But because there isn’t we haven’t seen anything like it.

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S6: What role could these judges potentially play during the House investigation and Trump and the impeachment proceedings now underway. I’m thinking for example of me Omero Trump chose to field Cavanaugh’s old seat. You’ve also written about her. She’s been particularly controversial.

S8: Yes she is certainly one of the worst nominees. She was a sort of far right legal scholar before joining the Trump administration and then quickly getting placed on the bench. She actually took Cavanaugh’s old seats on the D.C. Circuit and she has signaled very clearly that she would be willing to stymie Democrats investigation of Donald Trump if she ever gets the chance. So she recently wrote a dissent and it was a dissent which means she wasn’t in the majority. This isn’t the law but she basically wrote that courts should have the power to define which offenses are impeachable and which aren’t. Which would mean that she could take a look at what House Democrats say is an impeachable offense and overrule them and say you’re not allowed to impeach Donald Trump on these grounds because I don’t think that’s actually impeachable. She has also said that the judiciary should be able to insert itself into the investigation to block Democrats from issuing subpoenas of Donald Trump and his allies that basically the judiciary should be able to police this impeachment and police it with a heavy thumb on the scale of Trump and Democrats and civil rights organizations who oppose her nomination vehemently.

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S5: Why.

S8: Because she had written so extensively against all of these very important progressive values. So for instance she wrote some very odd articles that seemed to dismiss marriage equality the rights of gays and lesbians to be able to get married. She is sort of extreme anti regulation advocate. She seems to believe that many if not most government regulations are illegitimate and unconstitutional. She doesn’t seem to believe that agencies like the EPA right the Environmental Protection Agency it’s constantly passing new rules to protect us from toxic chemicals to protect us from emissions. She doesn’t seem to think it has the power to do that and that’s very frightening for the reasons I was sort of laying out before. Because Trump will be out of office one day. There will be a Democratic administration that wants to say stop mercury emissions stop carbon emissions it will try to do that through the EPA and there will be judges like Naomi Rahall who say actually we don’t think you’re allowed to do that.

S6: It seems to me like Judge Roe is essentially questioning the power of the legislative branch. I mean is he suggesting for example of the courts could suppress or notify impeachment proceedings.

S8: Is that that is the strong implication of her dissent. It was quite shocking to many legal scholars really across the political spectrum. And it’s notable because the understanding of politics today is that the president has become extremely powerful and the Congress has become very weak. Everyone knows this right. Like look around. The president gets to do a ton of stuff whatever he wants. Meanwhile Congress can agree on anything it’s constantly gridlocked. Naomi Rao comes out with this dissent and says No no no you guys don’t understand. Really. Congress is way out of bounds it’s way too powerful and the president is so weak. So we judges need to step in and help Trump shield poor Donald Trump against this overly powerful Congress. That was just such a head scratcher because it’s totally detached from reality. It’s not how American politics works. And it suggests to me even if she’s not conscious of her bias toward Trump it definitely manifests itself in these bizarro rulings that as I said put a thumb on the scale in favor of the White House.

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S6: What is she trying to accomplish. Is she thinking of the Supreme Court and how it might react to her opinions. What’s your strategy.

S8: Absolutely so I think what many of these lower court judges are doing judges like James Hoge James Bias and Judge Rao is to try to persuade the conservative justices on the Supreme Court to adopt their views so they know that there are four staunch conservatives on the Supreme Court Kavanaugh Gore search Thomas and Alito and they know that Chief Justice John Roberts is pretty conservative but that sometimes he swings a little bit left or at least toward the center. And it seems to me that what these lower court reactionary judges are doing is lobbying the chief justice and telling him hey look how correct we are. This is the best argument for the conservative side. You need to adopt our argument your conservative allies need to adopt our argument. We are correct we are putting pressure on you to affirm us almost sort of creating a narrative that the chief justice should buy into. So I do think there is a lot of lobbying among Trump judges on the lower courts to the Supreme Court to try to convince Roberts to come around to their point of view. So it’s like a system of pressure. Yes no doubt no doubt about it. These lower court judges are pressuring the Supreme Court to agree with them.

S6: MARGULIS think of 2021 let’s entertain the horrible thought that Trump wins re-election. Most people think of the Supreme Court than how he could do it further if he had four more years.

S5: How consequential would that be.

S8: It’s really hard to overstate how incredibly consequential it would be. I feel that I would be accused of exaggeration or perhaps catastrophe rising depending on your viewpoint to say it would be the most consequential election in American history for the judiciary for the rule of law and self governance because it doesn’t seem like all four liberal justices on the bench today would be able to make it through another Trump term. Justice Ruth Bader Ginsburg is going to be approaching her late 80s soon. Justice Stephen Breyer is also in his 80s. If either one of them is forced to retire for health reasons and Trump is able to appoint another conservative justice to the Supreme Court you will have a coalition of five justices who are ready to sets our government on fire who are ready to set progressive precedent on fire and not just overturn the right to abortion access the right to marriage equality but really to severely curtail the right to vote to abolish protections against race discrimination and sex discrimination to undo the last 50 years of criminal justice reform in many ways. The right to a lawyer if you can’t afford one for instance the right to be informed of your own rights when you’re arrested. All of these bedrock liberties would be gone in just a few years and it would affect probably the rest of the American republic.

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S6: Again it’s hard to overstate just how consequential it would be if the Supreme Court. Your main concern when you think of it would trump re-election or should voters also think of what Trump could do or continue to do to the country’s lower courts in his second term.

S8: Well of course voters all have their reasons for opposing or perhaps supporting Trump. And you know I would not tell them that their chief concern is not the most important matter here. I do think that the courts in my view are the story the judges are the story. And if Trump gets another term the impact on the judiciary will be the foremost impact. But the reality is that even if Trump does not appoint another Supreme Court justice his impact the lower courts will remain huge. And if he is re-elected his continued impact on the lower courts will be just astonishingly important because everyone focuses on the Supreme Court. Everyone talks about big Supreme Court decisions but the reality is that the vast majority of cases are resolved in lower courts. The Supreme Court only takes about 80 cases a year. It turns away thousands more. And when it turns those cases away it leaves the lower court decisions standing. So these judges judges like James ho judges like Naomi Roe they are getting the last word on hundreds if not thousands of matters of great importance every single year. And so I think it’s really vital to recognize that so many of the great disputes of our time disputes over things like abortion access are right now getting resolved in the lower courts and the Supreme Court is refusing to take a look at them. And that means that the lower court judgment stands. So if you have a really conservative court of appeals like the 5th U.S. Circuit Court of Appeals it can do a whole lot of damage to progressive policies without the Supreme Court even saying a word because conservative judges will go as far as they can to push the law to the right. Knowing that there is always a pretty slim chance that the Supreme Court’s going to step in they just don’t take that many cases. Most law in the United States is made in the lower courts.

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S5: We are recording this is Comcast almost one year away from the 2020 election to the day almost smoke. Sum it up for voters what’s at stake next year.

S8: So I would say first of all a slew of individual rights are at stake because the judiciary is at stake. Again I think that if Trump wins re-election he will dominate the lower courts. He will fully take over the Supreme Court and that means you can say goodbye to things like the guaranteed constitutional right to to marriage whether you’re gay or straights the right to abortion access. I think that the courts would definitely abolish Obamacare. The Affordable Care Act if Trump gets another term and is able to install more reactionaries on the bench I think that you will see a lot of just sort of the everyday work of governments slowed or sort of shut down by the courts. Things like environmental regulation financial regulation these watchdogs who don’t get a lot of glory but you know sit in their offices in DC and make sure that crooks and schemers aren’t getting away with everything that that corporations are working within the law. These judges have made it clear that they think they’re legitimate. They don’t think that these bureaucrats should be able to do their jobs and that would mean much of much government regulation would just fall it would collapse. So what’s at stake is the American system of government as we know it’s a system where individual rights are really guaranteed by the judiciary where the Bill of Rights is truly respected and where the federal government can mostly do its job where it gets to say mercury is killing people we’ve got to stop it predatory lenders are hurting people we’ve gotta shut them down. This unglamorous everyday work of government.

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S6: That’s what reactionaries want to stop the American system of government as we know it. That’s what’s at stake.

S8: Yes absolutely. Also just the right to vote the right to cast an equal vote is very much at stake not only because the courts could uphold things like voter I.D. laws but also the conservative judges have made very clear that they’d like to uphold rigging elections abolishing the principle of one person one vote allowing states to make certain people’s votes literally count more than others. All of that has been guaranteed by the Supreme Court. It’s all on the line. So when I say the American system of government I’m including democracy itself the principle that every individual should be able to count an equal vote. That’s something that Trump judges just don’t believe in.

S9: Mark Joseph Stern writes for Slate You should read him every chance you get. Thank you Mark. Thank you so much for having me on. And. That’s our show for today What do you think. Find us on Twitter and let us know please. We love to hear from you always. I’m at Lone grocer. That’s Kiara using E. The show is ad real Trump cast our show today was produced by Melissa Coburn an engineer by the end of the video.

S10: I’m so glad I was in Los Angeles California. Thanks for listening to Trump. Guest.