Nine months into his presidency, President Trump has started to deliver on the most offensive of his campaign promises. He is dismantling the Affordable Care Act (to the extent he can) through funding cuts and policy reversals. He is threatening the children of immigrants with deportation. He is proposing tax cuts for the rich that will gut our domestic budget and/or exponentially increase the national debt. His departments are busy rolling back policies and regulations on everything from health care to the environment to civil rights, consumer protections, reproductive rights, and much more.
But at the top of this list, Trump has set a goal of transforming the judiciary into enforcers of a far right — and downright un-American — agenda. Judicial appointments to lifetime seats on the federal bench are the best weapon in his arsenal — the hardest to prevent and the hardest to undo. In fact as a practical matter, once made they cannot be undone at all.
As a result of GOP stonewalling during President Obama’s term, President Trump inherited 120 vacancies on the federal bench, a figure that has since grown to 150 or nearly 18 percent of all federal judgeships. So far, Trump has nominated more than 50 ultra-right wing ideologues to fill these vacancies. The nominees do not reflect the diversity of our country and, on the whole, have not demonstrated any commitment to upholding our most important constitutional rights.
Moreover, the White House and US Senate, led by Majority Leader Mitch McConnell (R-KY) and Judiciary Committee Chairman Charles Grassley (R-IA), have disregarded nearly every rule and tradition meant to ensure that our federal judges are qualified, diverse, and independent. Their goal is to pack the federal bench with as many of Trump’s extremist nominees as possible. Thus far, Trump’s circuit (appeals) court nominees are being confirmed two and a half times faster than Obama’s.
What can we do? First, demand that our senators approve only nominees that are ideologically independent and from diverse professional and personal backgrounds. Senators — all of whom vote on judicial nominations — are our most direct point of entry into the confirmation process.
Second, we should insist that the Senate Judiciary Committee reinstate the non-partisan American Bar Association (ABA) review. The ABA has traditionally evaluated judicial candidates before they are nominated, assessing candidates’ competence, integrity, and temperament. The Senate Judiciary Committee has traditionally waited for their rating before moving forward with a judicial nomination. No longer — now the White House and Senate Judiciary Committee advance judicial nominees without this critical input.
Third, we should demand that the Judiciary Committee continue to honor the “blue slip” tradition. This year is the 100th anniversary of the blue slip, a process created in 1917 in which a judicial nominee does not receive a Senate hearing or vote unless the two home-state senators signal their support for the nominee by returning their blue slips to the chair of the Senate Judiciary Committee. This tradition helps ensure reasonable, mainstream judges, but is under threat from Senator Majority Leader Mitch McConnell, who wants to abolish it for circuit nominations.
Fourth, we should pressure the White House to consult with home-state senators prior to making judicial nominations as part of the traditional “advice and consent” process. President Trump has largely outsourced this responsibility to conservative interest groups, such as the Heritage Foundation and Federalist Society, tilting the list of nominees far to the right, including some that clearly lack the judicial temperament required for the job and openly espouse racist, nativist, misogynist, and homophobic attitudes.
Right now, federal district court judges have halted critical funding for the Affordable Care Act. Several judges have stopped the Muslim travel ban. A judge has struck down a Texas law crippling access to abortion. No matter where you sit on the political spectrum, US district court judges alter our landscape. Their rulings are often final, as most don’t make it to the appeals courts. When they do, they shape the issues that can be appealed and affect public debate. And there are a lot of them — 369,208 cases were filed in US district courts in the year ending September 30, 2016.
Judges on US circuit courts — the federal courts of appeal in most situations — are even more powerful. For all but a minute percentage of the 60,357 appeals filed in 2016, circuit court rulings are final and set precedent for their respective jurisdictions. Their decisions weigh heavily in whether a case ultimately reaches the Supreme Court. The Supreme Court itself reports that it receives approximately 7,000-8,000 petitions for review each term and typically grants and hears oral argument in only about 80.
Needless to say, a seat on the Supreme Court is the ultimate prize, and President Trump has already achieved that in elevating Neil Gorsuch to the nation’s highest tribunal. We must be prepared for the next such nomination, but in the meantime, we as constituents, voters, and citizens cannot sit passively while the Senate Judiciary Committee and Senate majority party make a mockery of the ongoing process of filling all the other seats on the federal bench.
We must make it clear what is happening. The nominees offered by Trump are shocking; each seems farther from the mainstream than the nominee who came before. Usual order, standard practice, and constitutional duty have been thwarted in order to confirm such nominees that would otherwise fail. We must tell our senators that they have a responsibility to advise and consent. And they must not vote for nominees that are right wing zealots far outside the norm, not only for our own sake, but for our children and their children.