Accommodating The Unacceptable: Enabling A Trump Takeover Of The Judiciary

The last thing we need are partisan, biased, close-minded judges hand-picked for their loyalty to Trump.
A protest sign at a DC rally prior to the confirmation vote on Neil Gorsuch
A protest sign at a DC rally prior to the confirmation vote on Neil Gorsuch

Senate Republicans are moving full-speed ahead on packing the federal judiciary with Trump’s extreme nominees who are likely to compromise the independence of the third branch of government. The Judicial Branch is the nonpartisan backstop central to the checks and balances put in place to guard against Constitution-busting Executive and Legislative Branch actions.

Led by Majority Leader Mitch McConnell, the Senate is set to vote on four troubling Trump nominees to lifetime seats on the federal appeals courts. Eager to show that the Senate is delivering on at least one piece of the Trump agenda, McConnell with the help of Senate Judiciary Chairman Sen. Chuck Grassley (R-IA) has been moving the confirmation process at the political equivalence of ‘break-neck speed.’

The court-packing began even before Donald Trump’s election when Sen. McConnell led a concerted campaign of obstruction to maintain the Supreme Court vacancy left by Justice Antonin Scalia’s death. By blocking even a hearing for President Obama’s nominee, Judge Merrick Garland, McConnell handed the new Republican president a ready-to-fill seat on the highest court.

Anticipating this, then-candidate Trump released a list of 21 potential nominees, closely vetted for ideological correctness by the Federalist Society and Heritage Foundation. From this list, it was Neil Gorsuch who got the nod. Now a member of the highest court, he has quickly validated the right-wing’s faith in him.

Turning back to his list, Trump has plucked some of the youngest and most extreme individuals for subsequent vacancies on the federal bench, including two of four nominees set for serial confirmation votes this coming week: Joan Larsen and Allison Eid. Amy Coney Barrett is also among the four as is Stephanos Bibas who was only just approved days ago on a party-line vote by the Senate Judiciary Committee.

Given that this list included Trump’s picks for the Supreme Court vacancy, it’s not out of the question that an elevation to the appeals court could pave the way for Larsen or Eid to fill the next opening on the high court. Here’s a closer look at these four nominees.

Amy Coney Barrett, a professor at Notre Dame Law School, hasn’t said much as a lawyer in front of a judge, but she has had lots to say about judges.

By her own admission, she’s never been “first chair” for a trial, never argued an appeal, or been counsel of record on an appeal. But she has written that judges need not be ruled by legal precedent if they disagree with it. Barrett has written about the duty of Catholic judges to put their faith above the law explicitly with respect to abortion and the death penalty. (When Senators Feinstein and Durbin asked her about this at her Senate Judiciary Committee hearing, they were excoriated for raising her religion.)

Coney Barrett has criticized Roe v Wade and believes that life begins at conception. She has also criticized the accommodation for birth control coverage in the Affordable Care Act, among other out-of-the-mainstream views.

Based on her writings, it is safe to assume that she won’t disappoint the right-wing once the Republican majority confirms her to a lifetime seat on the Seventh Circuit Court of Appeals—a likely outcome.

Joan Larsen of Michigan, from the Heritage Foundation/Federalist Society list, is up for a seat on the Sixth Circuit. Currently a justice on the Michigan Supreme Court, Larsen has raised an alarm among the LGBTQ community and their allies.

She had harsh words for the landmark Supreme Court Lawrence v. Texas case which stuck down the state’s sodomy laws and paved the way for LGBTQ rights. She sided with those who refused to hear a parental rights case involving a same-sex couple – an issue that other states, in the aftermath of the Obergefell v. Hodges marriage equality decision, had taken up.

For anyone, including several Republicans, worried about an out-of-control Executive, Larsen’s record shows she may not be the independent judge needed in these times. The Alliance for Justice in its research report on Joan Larsen has quite a few examples. Time and again, she has shown a bias toward presidential power which should give many on both sides of the Senate aisle pause in this era of Donald Trump.

Allison Eid, a Colorado State Supreme Court judge, is up to fill Neil Gorsuch’s seat on the Tenth Circuit and, a look at her record, indicates that she’d unfortunately follow in his footsteps. In her writings she has praised the Supreme Court’s decision to invalidate the Gun-Free School Act as well as their decision to throw out part of the Violence against Women Act.

On the state court, she sided with those judges who would thwart public education in several cases involving school funding. She opposed the use of eminent domain to help create a park but supported it to help private companies construct a pipeline, raising concerns about her views on the environment. Add to this troubling dissents from decisions on money in politics restrictions and redistricting, among other issues, and it is obvious how she made the list of 21.

Stephanos Bibas, an academic up for a seat on the Third Circuit, has less of a record on social issues such as LGBTQ or reproductive rights but raises eyebrows when it comes to some of his writing on mass incarceration, drug addiction and Title IX. There wasn’t much time to explore his record given the rushed hearing, committee vote, and quick appearance on the Senate calendar for a final vote.

Next week, the Senate will vote on whether to elevate these nominees to lifetime seats on extremely influential appellate courts.

In the face of these “not-normal,” disturbing times, the last thing we need are partisan, biased, close-minded judges hand-picked for their loyalty to Donald Trump and his politics.

If we are to preserve the independence of the Judicial Branch as a fair and honest check on the Executive and Legislative Branches, senators—and those of us who elected them—must vote based on what is best for the country rather than what will appease their party and the president.

Last week, in a much-lauded speech on the Senate floor, Sen. Jeff Flake (R-AZ) asserted, “It is time for our complicity and our accommodation of the unacceptable to end.” He’s right. Next week’s judicial confirmation votes provide the perfect opportunity for Flake and his colleagues.