Focusing on the long-term—especially about matters of governmental and political process—isn’t exactly the easiest thing to do in the middle of a pandemic. However, Republicans never seem to think it’s the wrong time to push every button made available to them in their quest to gain as much power as possible. No matter what constitutional or historical norms they have to trample on, Donald Trump and his party are determined to create a conservative judiciary at the federal level that will endure for a quarter-century or more.
Let’s start, however, with what’s going on in 2020. Moscow Mitch—Republican Senate Majority Leader Mitch McConnell, that is—has been doing things the Founders likely never envisioned when they wrote our Constitution. He, along with allies, have been making calls to aging conservative jurists on the federal courts, reminding them that the clock is ticking—on Trump’s time in the White House, on the Republicans’ hold on the Senate, and, most appropriately given his embrace of the nickname “Grim Reaper,” on their very lives. McConnell has been urging them to all retire ASAP so that he and The Man Who Lost The Popular Vote can put as many young whipper-snappers as possible into lifetime seats on the federal bench, seats they’ll hold long past a Sasha Obama presidency.
Democratic Senate Minority Leader Chuck Schumer recently called McConnell out on this blatant manipulation of the process: “Senator McConnell knows he can’t achieve any of his extreme goals legislatively, so he continues to attempt to pull America to the far right by packing the courts.”
As The New York Times notes, some progressives have made statements urging justices to stay in their positions so that Trump can’t appoint their successors, but McConnell has achieved a new low by targeting individual judges and asking them to retire. This ask is a nasty one, on par with greedy heirs rooting for wealthy relatives to die sometime before 2010 came to an end ... just so they could dodge the temporarily-repealed estate tax.
McConnell here is repeating, in private, sentiments that members of his party such as Senate Judiciary Committee Chair Chuck Grassley publicly expressed in the run-up to the 2018 midterms: “If you are thinking about quitting this year, do it yesterday. If we have a Democrat Senate, you’re never going to get the kind of people that are strict constructionists.”
For anyone confused, “strict constructionists”—i.e., conservative judges who claim that all they do is look to the plain text of the Constitution when making their rulings—is really just a fancy term Republicans use in public to give a more objective veneer to their preferred judicial approach, which almost always—coincidentally, of course—comes down on the side of the powerful. In other words, characterizing conservative judges as strict constructionists sounds less political than saying that they are right-wing ideologues who vote just like Rush Limbaugh would—even though the latter is the truth.
Republicans are being quite systematic about this whole affair. Their efforts are supported by a private organization called the Article III Project, named after the part of the Constitution that establishes lifetime tenure for federal judges, subject to impeachment and removal if they fail to live up to the standard of “good behaviour” laid down therein. This group exists to “fight for the confirmation of President Trump’s judicial nominees.”
The helpful folks over at A3P—that’s their clever moniker—want to clear out as many existing judges as possible. They’ve identified 90 who were appointed by a previous Republican president and who, based on their age and how many years they’ve served, either qualify or will qualify by year’s end for something called senior status.
According to the court system’s rules, those who take senior status now rather than outright retire allow Trump to put another, younger conservative in their place just as if they had retired. But judges on senior status get to keep drawing their full salary, hire clerks, and hear a reduced caseload. If this sounds bananas to you, you’re not alone. In fact, it’s the best of both worlds for those senior judges and for Republican leaders who want to increase their imprint on the judiciary. Thanks to A3P’s work, McConnell has a long list of people to target and a very attractive offer to make them.
McConnell and Trump have made a great effort to, in the senator’s words, “leave no vacancy behind.” They have placed 51 judges onto the U.S. Court of Appeals in Trump’s first three years (and 191 federal judges overall, as well as two on the Supreme Court), compared to 55 in Barack Obama’s entire eight years in office, and 62 during George W. Bush’s presidency. Trump has now named more than one-quarter of all sitting U.S. Appeals Court justices.
A good chunk of those new appellate judges—more than one out of three—took a spot previously held by a Democratic-appointed justice, thus shifting the bench hard to the right. Particularly noteworthy is the contrast between the diversity of the judges Obama appointed—only 31% of whom were white men, compared to 67% for Trump. For reference, somewhere around 40-45% of lawyers are white males, and white males constitute around 30% of the overall U.S. population, according to census data.
The New York Times conducted an in-depth analysis earlier this month of these Trump judges and found that they differ “significantly” from those nominated by either Obama or G.W. Bush. Regarding their activities prior to being nominated by Trump, they had been “more openly engaged in causes important to Republicans, such as opposition to gay marriage and to government funding for abortion.” They were also more likely to have been political appointees and made political donations. Even more alarming has been their impact after taking up their new positions:
When ruling on cases, they have been notably more likely than other Republican appointees to disagree with peers selected by Democratic presidents, and more likely to agree with those Republican appointees, suggesting they are more consistently conservative. Among the dozen or so judges that most fit the pattern, The Times found, are three Mr. Trump has signaled were on his Supreme Court shortlist.
While the appellate courts favor consensus and disagreement remains relatively rare — there were 125 instances when a Trump appointee wrote the majority opinion or dissent in a split decision — the new judges have ruled on disputed cases across a range of contentious issues, including abortion, immigration, L.G.B.T. rights and lobbying requirements, the examination shows.
Sen. McConnell has long been clear about the level of importance he places on reshaping the federal judiciary. "There are over 1,200 executive branch appointments that come to us for confirmation, and among the most important—in fact, I would argue, the most important—confirmations we have are lifetime appointments to the judiciary," McConnell told NPR. "Obviously, this is my top priority."
McConnell’s success in placing conservative judges on the federal bench during Trump’s tenure is a direct result of his actions in the final two years of Obama’s presidency. After Republicans took control of the Senate in 2015, they basically just stopped approving his nominees. The Brookings Institution noted the “unprecedentedly miniscule number of confirmations” that were carried out in those two years under McConnell’s leadership. That’s why there were 103 open seats on the federal bench for Trump to fill when he was inaugurated.
Without question, the most important of those openings was on the Supreme Court. McConnell ensured that seat remained open for almost a full year after the death of Justice Antonin Scalia by denying a hearing, let alone a vote, to President Obama’s nominee, U.S. District Court Chief Justice Merrick Garland. Garland was a moderate about whom Republican Sen. Orrin Hatch had said in 2010: “I have no doubts that Garland would get a lot of (Senate) votes. And I will do my best to help him get them.” However, Hatch did not keep his word in 2016. Oh, and during the Supreme Court confirmation process for Brett Kavanaugh, he pretended like the Garland nomination never happened. That’s what you call a double back-flip worth of bullshit.
Additionally, Garland was 63 years old when Obama nominated him, so his age itself served as a kind of compromise when compared to, for example, the nomination of 43-year-old Clarence Thomas by George H.W. Bush to a lifetime seat on the highest court back in 1992.
The way McConnell and Co. abused the established process when they essentially ignored a presidential nomination to the Supreme Court also qualifies as unprecedented, despite widely debunked Republican protestations to the contrary. As The New York Times editorial board wrote shortly after the 2016 election, the seat in which Justice Neil Gorsuch now sits is a “stolen seat.” Encouraging a mass wave of retirements in order to give Trump an even more outsized imprint on the federal judiciary would, if it succeeds, represent another form of theft.
All of this—from the blocking of Garland to the personalized arm-twisting aimed at getting judges to give up their seats in the coming months before it’s too late—reflects a level of cynicism and rejection of principle that has defined the contemporary Republican Party going back to even before Trump took it over. Principles? To Republicans, those are for suckers, i.e. Democrats.
Our Constitution’s authors were, generally speaking, not naive. They didn’t trust easily—they created the Electoral College because they didn’t trust the people to directly elect our president. However, the Framers failed to anticipate how the rules they wrote into the Constitution might be abused. They likely did not imagine that the Senate’s charge to provide “advice and consent,” as laid out in Article II, Section 2, Clause 2 of the Constitution, would lead to the kind of treatment with which the nomination of Judge Garland was met. The Framers never planned for Mitch McConnell.
Because of what he has done, Democrats are faced with a choice if and when they retake the White House and the Senate. Do they act in kind, and similarly game the system? Or do they take the high road, which would allow Republicans to hold on to their ill-gotten gains in the judicial branch? Keep in minds they all too often use those gains to further tighten their grip on power through judicial rulings on, for example, matters like voting rights or gerrymandering.
There’s only one way out of that dilemma: namely, to fundamentally alter the process so that it could not be gamed so easily. We need to get rid of lifetime tenure for federal judges, from the Supreme Court right on down the line. There are many different proposals out there, most of which focus on term limits for the highest court, but McConnell’s most recent actions make clear that such limits are necessary at lower levels as well. I haven’t seen polling done on term limits for all federal judges, but Supreme Court term limits are quite popular, with Democrats, Republicans, and independents all expressing similar levels of support.
To be sure, it would not be easy to implement such changes, as they would require a constitutional amendment. Nevertheless, such changes are necessary because any process that is based on principles, for example the idea that life tenure for justices is necessary to ensure that they'll be independent and removed from politics, will be abused by Republicans who have no principles at all.
Our democratic system must be governed by processes that prevent abuse by the unprincipled. As I’ve written before, Republicans seem to be taking their cues from young adult fiction of all places, leaning on the values of Harry Potter’s nemesis, Lord Voldemort—derived from Friedrich Nietzsche, the German philosopher who has inspired everyone on the right from Hitler to today’s white nationalists (even if they all get him wrong, but that’s another story): “There is no good and evil, there is only power, and those too weak to seek it.”
Nancy LeTourneau at Washington Monthly wrote that McConnell’s recent “outreach” to aging Republican judges indicates that he is “running scared” because “he is aware that his party will soon be out of power.” I rarely hope that McConnell is right about anything.
This time, however, Moscow Mitch and I are completely on the same page.
Ian Reifowitz is the author of The Tribalization of Politics: How Rush Limbaugh's Race-Baiting Rhetoric on the Obama Presidency Paved the Way for Trump (Foreword by Markos Moulitsas)