Sunday, December 29, 2019

Trump Remaking Federal Bench in His Own Image

      President Trump rubbed Chief Justice Roberts the wrong way late last year by blaming what was then the most recent of the president's setbacks in federal courts on a well regarded jurist that he labeled as "an Obama judge." Roberts responded by putting in not merely a word, but an entire paragraph, in defense of the federal judiciary.
       “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a written statement issued by the Court's public information office just before Thanksgiving. "What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for."
       Roberts is likely to extol the virtues of an ostensibly nonpartisan federal judiciary again this week when he releases his annual report on the state of the federal judiciary on Tuesday [Dec. 31].  But Roberts is likely to ignore the elephant in the room: Trump's overt politicization of the federal judiciary with a record-setting number of confirmed federal judges after three years in office, many of them without a shred of bipartisan support.
       In New York, the state's Democratic governor, Andrew Cuomo, cited the reality of Trump's judicial appointments rather than Roberts' idealized image when he vetoed a seemingly uncontroversial bill to allow federal judges to officiate weddings in the Empire State. " I cannot in good conscience support legislation that would authorize such actions by federal judges who are appointed by this federal administration,” Cuomo said in a veto message issued Dec. 27.
      In effect, Cuomo signaled his view that the handful of judges Trump has named to the federal bench in New York have ruined the good name for the others. “President Trump does not embody who we are as New Yorkers," Cuomo said in the veto message. "The cornerstones that built our great state are diversity, tolerance, and inclusion.”
       In fact, Trump's judicial appointments openly flout diversity, tolerance, and inclusion as goals, according to a study by the gay rights organization, Lambda Legal.  Out of 50 judges named to federal courts of appeals through fall 2019, white males comprise the overwhelming majority: 40 men and 10 women; 42 white judges, seven Asians, one Latinx, and no one of African American ancestry.
      With a Senate calendar driven by the hyperpartisan majority leader, Mitch McConnell, Trump has won confirmation for more circuit court judges in three years than any of the previous five presidents in their first three years in office: 25 for Obama, 30 for Bush43, 28 for Clinton, 31 for Bush41, and 23 for Reagan. Trump has almost equaled in just three years Obama's total of 55 for eight years: a number reduced by McConnell's refusal to act on Obama's nominations in the Democrat's final two years in the White House.
       Trump's record also has this distinction: the confirmed circuit court judges include three who were rated "not qualified" by the American Bar Association: Steven Grasz  and Jonathan Kobes for the Eighth Circuit and Lawrence Van Dyke for the Ninth Circuit. They are the first nominees deemed unqualified by the ABA to win confirmation to federal circuit courts in more than 30 years, according to the study. All three won Senate confirmation on party-line votes after strong opposition from traditional civil rights groups.
       Among Trump's 50 circuit court judges, 43 were or are members of the conservative-libertarian Federalist Society, according to Lambda Legal's compilation. No ideological interest group has ever enjoyed similar success in getting its members named to federal judgeships, not the progressive American Constitution Society under Obama and not the American Civil Liberties Union under any president.
       Given its mission, Lambda Legal naturally stressed the anti-LGBT records of many Trump judges: by its count, more than one-third of Trump's circuit court appointees. Van Dyke, for one, espoused the unproven claim that marriage equality for gays and lesbians harms children and society. Steven Menashi, confirmed for one of the New York seats on the Second Circuit, "denigrated" the Supreme Court's marriage equality ruling, according to Lambda Legal, and supported banning gays and lesbians from the military. Eric Murphy, a former Ohio state's attorney confirmed for the Sixth Circuit, argued against marriage equality in the case that reached the Supreme Court as Obergefell v. Hodges. Unmentioned in the report are the several Trump nominees who could not bring themselves to endorse the Supreme Court's landmark ruling in Brown v. Board of Education to outlaw racial segregation in public schools.
      The report also underscores the overall impact of Trump's appointments on the federal courts immediately below the Supreme Court. On eight of the 12 geographically-based circuit courts, Trump judges comprise at least one-fourth of the active membership —  all but the First, Fourth, Tenth, and D.C. circuits. In all, Republican-appointed judges comprise a majority in seven of the twelve.
      McConnell has enabled Trump's transformation of the federal judiciary, the study notes, by discarding procedural safeguards aimed at promoting a measure of bipartisanship in appointments to the federal bench. In addition to the 50 judges confirmed for federal courts of appeals —  more than one-fourth of the total number —  the Senate has confirmed 133 Trump nominees to federal district court, including 80 in 2019. With federal courts one of the few institutions willing and able to stand up to Trump, the stakes are high in his remaining year in office and even higher in a potential second term.

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