Even for those of us who are the most distressed by the Trump presidency, if you squint hard enough, it’s possible to see some teeny tiny bright spots. True, it does require squinting really, really hard and maybe even using some tinted lenses, but if you look at just the right angle, you can see them. One of these bright spots is the fact that Democrats/progressives/lefties finally seem to be focusing in on the vital importance of our nation’s judges.
The right has made the federal judiciary a top priority for decades: getting their justices appointed – not just to the Supreme Court but at every level of the judiciary has long been a primary goal. Not only have they made it an explicit focus of many political campaigns (it was a key tool Trump used to get reluctant conservatives on board with him), but behind the scenes they have developed extremely well-funded and influential activist groups specifically devoted to the cause.
Low on the List for the Left
The left, on the other hand, has never made this issue a priority, or even paid it much attention at all. This probably explains how Senator Mitch McConnell, abetted by his entire GOP caucus, was able to leave a Supreme Court seat sitting empty for an entire year after Justice Scalia died. It’s how he was able to deny Obama’s pick for that seat, Merrick Garland, the opportunity to even have a hearing, so that the seat could be held open for an eventual Republican President. At the same time, Republicans blocked more of Obama’s lower court nominees from going through than had been blocked under all previous Presidents combined.* This all happened with barely a whimper in response from the left – be it among the voting public or activist groups or even elected Democratic officials.
Likewise, the media – probably having become inured to Republican obstruction tactics by that point – barely reacted either. Though the print media did cover the issue, the coverage was scant and fleeting. The topic never received any sustained or prominent coverage. So that meant there was almost no attention drawn to what should have been the political scandal of the century, as it was occurring. Later, once it came time for Trump to fill the seat, suddenly there was a lot more attention drawn to what McConnell had done. But as he was pulling off his heist, there was very almost no opposition from the left and shockingly little coverage by the media.
Trump Has a Way of Changing Your Priorities
But now – here’s the bright spot – times are a’changin! The major mainstream media sources (print only – unfortunately not tv) have been doing some great coverage of Trump’s judicial appointments, as have smaller independent news sources, like Vox along with left-leaning writers such as Dahlia Lithwick. Combine this with the fact that we’ve now seen several vivid examples in which the courts have been the only check on Trump’s power when he’s used that power in controversial ways (e.g. the various travel bans, Trump’s attempt at a transgender military ban, the recent Jane Doe abortion case), and I think the issue of the judiciary has now moved front and center for many on the left.
It Will Still Matter Even After Trump
I’m, of course, thrilled by this new perspective, as this is something I’ve been trying to bring to people’s attention since quite early on in this blog. In a post back in March, A Caveat on Incompetence, I warned that even if Trump and the GOP continue to bungle their attempts to pass legislation, Trump still has the power to do great damage (from a progressive perspective) outside of the legislative sphere. My number one example of where he’d be able to accomplish this was in the area of judicial appointments:
In addition to Gorsuch’s appointment, Trump will also get to appoint an unusually high number of federal court judges, because of the large number of seats that were left unfilled under Obama, mostly due to GOP obstruction. There are about twice as many vacancies now as there were when President Obama took office. Many important cases – often on controversial subjects – get settled in these federal courts without ever reaching the Supreme Court.
So I believe it’s critical that the left is finally making this issue a priority – and that we keep it at the forefront of the agenda, even after Trump is out of the White House. There are few outside forces that will have greater impact on our lives, our politics, our futures than the makeup of our judiciary – arguably not even the President himself (except in so far as he appoints these judges). The President is important, of course, but judicial appointments are for life.** The various judges throughout the court system may make decisions that touch on any and every aspect of our lives. And the decisions they hand down – particularly for judges at the upper levels – may set precedents that stick with us forever. (Even if, arguably, it was not the Founders’ intent for the courts to be this powerful, in today’s reality, they are).
Front Page News
And with that, I want to point your attention to a particularly good article on this topic that made the front page of the NY Times this weekend: Trump is Rapidly Reshaping the Judiciary by Charlie Savage. As I mentioned above, the print media has been doing a lot of good coverage on this topic of late, but I liked this piece because Savage manages – in a fairly short article – to give a good overview of what’s been happening under Trump.
In addition to giving a picture of just how broadly Trump is changing the face of the judiciary and how crucial this project is for the right, Savage gives details about how far outside of the mainstream some of Trump’s nominees have been. Savage also covers the array of procedural tricks the Republican Senate is using to help Trump usher these changes through.
I highly recommend reading the whole article if you care about this issue (which I hope you do!). Excerpts don’t really do it justice, since just about every paragraph contains an important piece of information. But here’s a little taste anyway:
Mr. Trump started with 21 open appellate seats because after Republicans gained control of the Senate in 2015, they essentially shut down the confirmation process. Six additional appellate judgeships have opened since his inauguration, and nearly half of the 150 active appeals court judges are eligible to take senior status — semiretirement that permits a successor’s appointment — or will soon reach that age, according to Russell Wheeler, a Brookings Institution scholar.
As a result, Mr. Trump is poised to bring the conservative legal movement, which took shape in the 1980s in reaction to decades of liberal rulings on issues like the rights of criminal suspects and of women who want abortions, to a new peak of influence over American law and society.
*This led to then-Senate Majority Leader Harry Reid abolishing the filibuster for judicial nominees (other than Supreme Court), meaning nominees can now pass the Senate with just 51 votes. That change is making it easier for Trump’s nominees to get through the Senate now. So some would probably argue that Democrats are just getting what they deserve.
However, I think it’s highly likely – given all the extraordinary ways in which Republicans have been busting norms over the last decade – that if Harry Reid had not made the change back then, McConnell would have done it himself once Trump took office. Then they’d still be able to get their nominees through with 51 votes, but they’d have had more than one hundred additional vacant seats to fill, because Obama would never have been able to fill those seats.
**We’re talking here about federal judges – those are the ones who come in through presidential appointments. For state level judges, who come in through various methods (e.g. by election, appointment by Governor, etc), the posts are not necessarily lifetime posts.