First published on The Boston Globe.
Why do pro-Trump conservatives ignore his transcendent unfitness?
Because he is creating the politicized judiciary they crave – a dream team of right-wing enablers committed to advancing conservative ideology and corporate interests. If they resemble the roster of a men’s club dominated by privileged white males with the sensibilities to match, that is no coincidence. In legal circles, they are precisely that.
The Federalist Society was founded in 1982 to advance a stringently conservative theory of law and politics. Its central mission was to develop a prepackaged pool of ideologues who could transform the federal judiciary.
It worked. In less than two decades, the society became the ubiquitous screener of judicial nominees for Republican presidents, and its member comprised a good half of the lawyers the GOP appointed to the bench — including John Roberts and Samuel Alito, who joined Federalists Antonin Scalia and Clarence Thomas on the Supreme Court.
Inevitably, the ideal of dispassionate justice suffered. The abiding commitment of Federalist nominees is to the conservative network that made them judges, and to reshaping the law to its fixed political and social precepts. A study by professors Nancy Scherer and Banks Miller found that federal judges who are members of the society are twice as likely to cast votes that reflect conservative ideology than Republican nonmembers — let alone Democrats.
Particular beneficiaries are corporations. Another scholarly paper by professors Neil Devins and Lawrence Baum – “Split Definitive: How Party Polarization Turned the Supreme Court Into a Partisan Court” – spells out the linkage between conservative social networks and judicial decisions favoring business.
The most notorious example is the Supreme Court’s egregious ruling in Citizens United. There, four Federalist judges — Roberts, Scalia, Thomas, and Alito — joined with Reagan appointee Anthony Kennedy to reach well beyond the scope of the case, gratuitously holding that businesses and individuals have a constitutional right to spend unlimited sums to influence electoral outcomes. This reversed long-established precedent and shredded campaign finance laws aimed at limiting the power of money in politics. In short, the court changed settled procedures and existing law to empower corporations and the wealthy.
Enter candidate Donald Trump. To secure the allegiance of conservatives, he guaranteed that his judicial nominees would “all [be] picked by the Federalist Society” — beginning with a list of 21 potential Supreme Court nominees. From that list came Neil Gorsuch.
Two things swiftly became apparent: Gorsuch was unusually pleased with himself — and unusually friendly to business. One remarkable case involved a trucker stranded in subzero conditions. After waiting for rescue until hypothermia set in, he unhitched his cab, went to a gas station, returned to find a repairman, and delivered his load — whereupon he was fired for abandoning his truck. Of seven judges who heard the case, only Gorsuch favored the employer.
His presence on the court augurs well for corporations and poorly for average citizens. One pending case involves corporate efforts to avoid class actions — lawsuits brought by a group of people who allege the same wrong — by forcing each individual into arbitration. Because ordinary people cannot afford to litigate with corporations, this would confer de facto immunity on corporations for practices like generalized sex discrimination or consumer fraud.
Another pending case would disempower a union chosen by a minority of workers to represent all employees in collective bargaining. How? By gutting the requirement that the employees so represented pay union dues.
In both cases, one need not be a seer to know how Gorsuch will cast his potentially decisive vote — that’s what he’s there for. Indeed, he has already complained that class actions “prompt corporate defendants to pay dearly to settle.”
Gorsuch is but the tip of the corporate spear. With unwonted efficiency Trump has begun filling over 150 vacancies on federal courts with Federalists, who will serve for life. One corporate strategist calls this a “win–win” embraced “by both economic . . . and social conservatives” that will “impact . . . the country for 30 or 40 years.”
This means packing our courts with janissaries of the right. Speaking to the Federalists’ annual meeting, White House counsel Don McGahn said Trump had two lists: mainstream candidates who could be easily confirmed, or prospects “too hot for prime time — the kind of people who make some people nervous.” The first list, McGahn joked, was pitched in the trash.
Unsurprisingly, these paragons are a portrait of country club America. Of Trump’s 58 initial nominees, 53 are white, three Asian, one Hispanic, and one African-American. Only 11 are women.
Justice, it seems, will indeed be blind.
Richard North Patterson’s column appears regularly in the Globe. His latest book is “Fever Swamp.” Follow him on Twitter @RicPatterson.