Attention has focussed on the president’s Supreme Court nominee but the problem is far more insidiousby Diane Roberts / July 12, 2018 / Leave a comment
As expected, Donald Trump has nominated an uber-conservative to the United States’s highest court. Groups supporting reproductive rights, civil rights, workers’ rights, environmental protection, and the separation of church and state, are mobilising to oppose Brett Kavanaugh’s confirmation. Senators are girding their loins, getting ready for a fight.
Everybody’s running towards Judge Kavanaugh, the big explosion, a Trumpist blast from the American Right. The Right is still bitter about Roe v Wade, universal healthcare and marriage equality.
But Trump’s best chance at destroying progressivism is actually in the lower courts. Nobody much notices these judges, but they’re at the front line of big cases long before they get all the way to Washington. The two dozen Trump’s already gotten through the Senate, and the 100-plus he can still appoint, are ticking time bombs waiting to go off.
By all accounts, Trump had no idea he’d be choosing so many judges when he was elected. According to some insider accounts, Trump didn’t expect to be elected in the first place. But conservative think-tanks, advocacy groups and Senate Majority Leader Mitch McConnell were ready, realising the opportunity that fate and the structural deformities of the Electoral College might hand Republicans. They had lists ready to go.
It wasn’t always a well-oiled process: two candidates were rated “Not Qualified” by the American Bar Association. One, Matthew Petersen, could not answer the basic questions about court procedure put to him by members of the senate judiciary committee. Petersen had never tried a case, never taken a deposition on his own, and could not define key legal terms, such as a “motion in limine,” which is a request to exclude evidence. An exasperated Republican Senator John Kennedy of Louisiana said, “Just because you’ve seen ‘My Cousin Vinny’ doesn’t qualify you to be a federal judge.” Petersen later withdrew.
Some of Trump’s other picks were real doozies, too. There was Brett Talley, a former Republican speech writer, who apparently blogged favorably about the Ku Klux Klan, and “forgot” to mention he was married to a staffer in the Trump White House, and Jeff Mateer, who suggested that allowing gays to marry would open to the door to legalising bestiality. Plus, Mateer said, transgender children were part of “Satan’s plan.”
The good news is that none of these three was confirmed. The bad news—for those interested in social justice—is that 23 other right-wingers were confirmed. And more are either in place or coming. Amy Coney Barrett, to whom Trump gave a lifetime appointment on the Seventh Circuit Court of Appeals, has suggested that a judge’s religious sensibility might supersede her constitutional duty. Barrett, a darling of the anti-choice right who made Trump’s Supreme Court short list before he chose Kavanaugh, hinted that she would not be bound by what others consider “settled law”—such as Roe v Wade.
Others of her ilk include Wendy Vitter, who could not bring herself to endorse the ruling in Brown v the Board of Education, one of the US Supreme Court’s most important anti-racist decisions. Vitter, who has claimed that contraception gives women breast cancer and also (somehow) makes them vulnerable to violent attacks, awaits confirmation by the senate for a seat on a New Orleans federal court. Gregory Katsas, now an appellate justice on the DC Circuit Court (arguably the most powerful court in the nation after the Supreme Court), had been a White House lawyer. He worked on Trump’s Muslim ban, his decimation of the Deferred Action for Childhood Arrivals provisions that allowed the “Dreamers” to stay in the US, and the “emoluments” regulations which are supposed to preclude Trump’s using the presidency to make money.
More than 90 per cent of Trump’s lower court appointments are men. More than 80 per cent are white. Kevin Newsom, of the 11th Circuit Court of Appeals, made a name for himself as favouring corporations to the detriment of their workers and taking a dim view of fundamental rights for women and minorities. When Trump nominated him in 2017, the seat had been open for four years. President Barack Obama had put forth a candidate, Alabama district court judge Adbul Kallon, who would have been the firsts African American to serve on the 11th Circuit. But Kallon’s home state senators blocked his nomination—for no good reason—allowing Trump to put yet another conservative judge in place.
As we are constantly reminded, elections have consequences. With Trump’s nomination of Kavanaugh, Republicans are being rewarded for unfairly—possibly unconstitutionally—blocking consideration of Obama’s 2016 pick, Judge Merrick Garland. Democrats are enraged, but essentially powerless.
The courts under Trump are becoming less representative of the nation, more inclined to favour the increasingly marginal politics of the reactionaries who run the Republican Party. As the US becomes less white, less Christian, less intolerant of non-traditional gender roles and non-traditional sexual identities, and less enamored of unfettered capitalism, its courts seem to be heading in the other direction. The majority of the country goes forward; the courts may try to drag it backwards to a mean, small-minded America we’d hoped had gone forever.