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From the Experts

Exposing the Effort to Pack Federal Courts with Right-Wing Ideologues

October 23, 2018
By
Coby Dolan Senior Legislative Counsel

The threat to fair, impartial, and independent courts from the Trump administration, Senate Republican leadership, and right-wing advocacy groups cannot be understated.

Our federal courts are a critical check on the power of Congress and the executive branch and a means of holding wealthy corporations accountable. Maintaining the independence and accessibility of our courts today is more important than ever as a bulwark against tyranny, which is why Earthjustice’s Access to Justice campaign focuses on protecting our courts from all threats. Many of the more public threats come in the form of congressional legislation hostile to fair and equal access to the courtroom.

However, what can’t be accomplished legislatively can also be done by packing the courts with conservative, ideological judges willing to do the bidding of the wealthy few, including wealthy corporations and industry polluters. While most of the more than 60 legislative threats to justice in this Congress have been thwarted so far, the same can’t be said for judicial nominations. Flying under the radar for many Americans, even in the aftermath of the Kavanaugh Supreme Court confirmation process, is the concerted effort by the Trump administration, Senate Republican leadership, and right-wing advocacy groups (all supported and funded by dark corporate money) to appoint these agenda-driven nominees to lifetime appointments on our federal courts.

Over the past four years, Senate Republican leaders have adopted “by any means necessary” as their court-packing motto, throwing Senate rules and customs out the window to achieve ideological goals that are deeply unpopular with the American public. These goals include rolling back the power of federal agencies to protect public health and the environment, and the ability of the public to enforce these laws through the courts.

When Republicans took control of the U.S. Senate in 2015, Senate Judiciary Chairman Chuck Grassley orchestrated a historic stonewalling effort of President Obama’s nominees, particularly for the circuit courts, and most notoriously, the nearly yearlong effort to stifle any action — even holding a hearing — for Obama’s Supreme Court nominee Merrick Garland. The goal of confirming as few nominees as possible succeeded. The Senate confirmed the fewest judicial nominees in 64 years, leaving more than 100 seats open across the federal courts, including 14 appeals court slots and 84 district court vacancies.

In stark contrast to last Congress, Grassley is now applying new tactics to confirm as many judicial nominees as possible with Trump in the White House. Some of the tactics Grassley employed:

  • Jettisoning the 60-vote threshold for Supreme Court nominees. Scrapping the 60-vote rule ended a lengthy tradition of seeking broadly acceptable nominees and allowed both Justice Neil Gorsuch (54-45 confirmation vote) and Justice Brett Kavanaugh (50-48 confirmation vote) to ascend to the highest court by razor-thin margins.
  • Throwing out the century-old tradition of deferring to nominees’ home-state senators. Traditionally, nominees would not advance without both of their home state senators returning slips of approval, called “blue slips.” Grassley stripped this rule, eliminating a key mechanism for the minority party to provide their constitutional “advise and consent” authority. The chairman, for his part, doesn’t seem to be losing any sleep over it.
  • Advancing nominees that the American Bar Association hasn’t even rated as “qualified.” There’s a reason that, before Grassley’s latest moves, the Senate almost never advanced judicial nominees without a “qualified” rating from the American Bar Association: handing a lifetime seat to an unqualified, partisan, or ill-tempered judge can powerfully affect justice for thousands of people over the course of decades. It’s worth noting that the ABA rated six Trump administration nominees as “not qualified” — compared to zero during the entire Obama administration. Three of President Trump’s unqualified judges are already confirmed, seated, and busy ruling on federal cases.
  • Shoving several nominees' hearings into the same day — even if the minority party and most of the rest of Congress is out of town. In a rush to fill every judicial seat possible before this Congress is over — and in case Democrats retake control of the Senate — Grassley unilaterally scheduled hearings for multiple circuit court nominees on the same day. He’s packed multiple confirmations into the same day seven times so far, compared to zero during President Obama’s eight years in office when the minority party objected. If Justice Kavanaugh’s hearings were a sham, and they were, we need to invent a new expression to capture the audacity of holding hearings when the rest of Congress is closed for business.

Again, the court-packing efforts are paying dangerous dividends. In less than two years, the Trump administration has successfully appointed 84 federal judges, including two Supreme Court justices, and 29 appeals court judges. The 29 confirmed circuit judges (with 12 more confirmations imminent) means that one of every six active circuit court judges is now a Trump appointment. To put this in perspective, Senate Republican leadership allowed confirmation of only two circuit judges in President Obama’s last two years, including zero in the final year, leaving open 14 circuit court seats for Trump to fill, including a critical Supreme Court seat.

The threat to fair, impartial, and independent courts cannot be understated. Both new justices and the vast majority of the circuit court appointments have extensive ties to deeply conservative organizations including the Federalist Society and Heritage Foundation, both groups funded by millions of dollars in dark corporate money. In fact, President Trump has almost completely outsourced the selection process for federal judges to these and other dark-money groups advancing radical views. This outsourcing of nominee selections is another component of the court packing effort that has resulted in four of the sitting justices on the Supreme Court (including two Bush appointments) to be hand-picked by the Federalist Society’s leader, Leonard Leo.

And the dark money thumb on the scales of justice extends beyond the judges themselves. Just last week it came to light that the Heritage Foundation has been engaged in a secretive, partisan, closed-door “training program” to indoctrinate federal judicial clerks, all paid for (again) with corporate dark money. From top to bottom, these organizations are remaking the federal judiciary in their image.

What can we do to limit the damage of this latest attack on our courts? Unfortunately, Senate Democrats cannot block any of these nominees by themselves if Senate Republicans all back a nominee right now. But Earthjustice and our partners in the civil justice community will continue to shine a light both on the deeply broken confirmation process in the Senate and on the worst of the worst nominees — like Justices Kavanaugh and Gorsuch, and several lower court nominees.

By alerting the public to this sham process and deeply flawed nominees, and educating senators and their staffs about the dangers, we hope to bring more awareness to this attack on our courts and work with those in Congress still committed to equal access to justice for all, to demand justice for all. This is not an easy fight, but it is a fight worth having for the sake of our rights and our democracy.