Trump Is In His Best Position Yet To Confirm Incompetent Judges

Senate Republicans just strengthened their majority. Mitch McConnell is laser-focused on the courts. What could go wrong?
President Donald Trump has a friend in Senate Majority Leader Mitch McConnell when it comes to reshaping the federal judiciary.
President Donald Trump has a friend in Senate Majority Leader Mitch McConnell when it comes to reshaping the federal judiciary.

WASHINGTON ― Senate Republicans have been confirming ideologues and otherwise unqualified people to be lifetime federal judges ever since Donald Trump became president. As they head into 2019 with a strengthened majority, they are positioned to do more of the same ― and then some.

Republicans gained two Senate seats in November, giving them a 53-47 majority in the new year. That means Senate Majority Leader Mitch McConnell (R-Ky.) can now afford to lose a handful of GOP votes as he forges ahead with drastically reshaping the courts.

“We intend to keep confirming as many as we possibly can for as long as we’re in a position to do it,” he told reporters after the November election. “It will still be my top priority in setting the agenda here in the Senate. In the next Congress as well.”

Republicans have already put record numbers of Trump’s judges onto the federal bench: 30 circuit judges, 53 district judges and two Supreme Court justices. That’s so many circuit judges ― more than any other president has seen confirmed by this point in his first term ― that 1 in 6 seats on the U.S. circuit courts are now filled by judges nominated by Trump.

But beyond the sheer numbers, there’s an alarming theme in the caliber of Trump’s court picks. Many are young and ideological with records of attacking abortion rights, LGBTQ rights and voting rights. Many were also recommended to Trump by the conservative Federalist Society.

Democrats can’t do much to stop McConnell from confirming objectionable nominees; Republicans have been blowing up Senate traditions that previously gave the minority some leverage. And the reality is that even though Republicans have a slightly stronger hand now, all the GOP senators have been voting for Trump’s court picks nearly all the time, meaning the vote outcomes in the new Senate likely won’t change.

But the GOP’s increased margin opens the door to Trump putting forward even more extreme judicial nominees. And there’s no reason to think Republicans would say no.

Six of Trump’s court picks earned a rare and abysmal “not qualified” rating from the American Bar Association, and that didn’t stop Republicans from confirming four of them. One of the “not qualified” nominees was withdrawn, and another is still pending.

All but one Republican voted to confirm Supreme Court Justice Brett Kavanaugh, despite him wailing through his confirmation hearing about revenge-minded Democrats besmirching him. In the first two years of Trump’s presidency, amid dozens of judicial confirmation votes, there have been only two cases of GOP senators not supporting one of the president’s court picks on the Senate floor: Sen. Lisa Murkowski (Alaska) voted “present” on the Kavanaugh vote and Sen. John Kennedy (La.) voted against Gregory Katsas.

Carl Tobias, a University of Richmond law professor and judicial nominations expert, said this is an area of real concern in the coming Congress.

Republicans may try to “nominate and confirm people who are even more conservative than the 30 circuit appointees,” he said, “and arguably less competent.”

In the coming weeks, Trump is expected to renominate his court picks who weren’t confirmed in the last Congress and who he thinks can still get confirmed. There’s a handful of particularly egregious nominees to watch out for: District court nominee Thomas Farr is the architect of North Carolina’s voter suppression law. District court nominee Matthew Kacsmaryk questioned the legality of state bans on “conversion therapy” for LGBTQ kids. Circuit court nominee Eric Miller is fiercely opposed by Native American groups over his record of challenging tribal sovereignty and federal recognition of tribal existence.

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