Republicans are Hijacking the Courts. Will Senate Democrats Let Them?

Republicans have control of most state governments, the U.S. Congress, and the presidency. The only major piece of institutional political power they do not control is the federal courts. By the end of the Trump administration, they might control the courts too.

Josh Katz of the New York Times reports, “Mr. Trump could soon find himself responsible for appointing a greater share of federal court judges than any first-term president in 40 years.” He adds that there is a chance that Trump could have the opportunity to appoint “half of the federal bench.” Trump’s odds of appointing half of the federal judiciary are small, but so were the odds of him winning the election. It would be folly for Democrats not to take this threat seriously.

Like many dictators, Trump has declared war on any institution that has challenged him. He has lambasted the courts, the press, and the intelligence agencies. Given Trump’s dictatorial tendencies, it is fair to be concerned that he may appoint judges who will pledge allegiance to him first and the Constitution second.

As we have seen so far with the Trump administration, the courts are the only check on his abuse of power. The Republican-controlled Congress won’t investigate his relationship with Russia, his clear violation of the Emoluments Clause of the Constitution which prohibits the president (via his many businesses) from receiving gifts from foreign governments, and his other apparent ethics violations. They will not be a check on his abuse of power.

Democratic policy priorities today depend on the courts more than ever. Katz reports, “Studies have shown that lower court judges appointed by Republican presidents are less likely to find constitutional violations in establishment clause cases, abortion rights claims and allegations of racial discrimination.” Despite the fact that most federal cases are settled in the lower federal courts and these courts determine which cases can and cannot move on to the Supreme Court, Democrats typically pay little attention to the nominees for these seats. If Democrats continue to ignore them, they will weaken their own power significantly.

Senator Jeff Merkley is correct in pointing out that “Senate Republicans are in the middle of pulling off one of the great political heists in American history: the theft of a seat on the United States Supreme Court. And this theft, if successful, will have an enormous impact on the integrity of the Supreme Court and major issues from reproductive and labor rights to consumer and environmental protection.”

Many have called the theft of the Judge Merrick Garland’s appointment unprecedented, but this statement is not quite correct. It is unprecedented only if one ignores the fact that several of President Obama’s judicial appointments to lower courts were also blocked. Because Republicans blocked the appointment of Garland and many other judicial appointments, they have now delivered all of those seats to Trump.

What will Democrats do about this? Will they allow Trump to stack the judiciary or will they insist that these are stolen seats and therefore they do not belong to Trump?

In my view, a reasonable Democratic response would be to work to block Trump judicial appointments in proportion to the degree that Obama’s appointments were blocked. Doing otherwise, it seems to me, would continue to allow us to drift to a situation where Republicans refuse to appoint any Democratic nominee to the bench, and we have an overwhelmingly Republican judiciary. One party should not be allowed to control the judiciary.

At the very least—the very least—Democrats should insist that the Trump’s nominee to Garland’s seat on the Supreme Court answer questions about the legitimacy of the actions taken by the Senate Republicans in blocking Garland’s nomination. The nominee should be forced to answer whether anywhere in the Constitution it says that a president cannot make a nomination to the Supreme Court in the president’s final year. The nominee should be asked to weigh in on whether he considers the treatment of Judge Garland fair, ethical, and good for American democracy. There is only one answer to this question: it was not.

Algernon Austin is the author of America Is Not Post-Racial: Xenophobia, Islamophobia, Racism, and the 44th President which is the only book to analyze the 25 million Obama Haters in America.

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