Most liberals would like to forget the nightmare of the 115th Congress. But its most lasting legacy will be with us until the 2050s: the 83 conservatives now serving lifetime positions as federal judges.
In the aggregate, this cohort, which should represent the cream of the legal crop in America, is the least qualified and least diverse in recent memory.
According to an analysis by NPR, President Trump’s nominees were 77 percent male and 82 percent white (compared to Obama’s 57 percent male and 63 percent white nominees). An unprecedented six nominees, including one just confirmed by the lame-duck congress, were deemed “not qualified” by the non-partisan American Bar Association (ABA). Not one of President Obama’s nominees was so designated.
There are also many of them. In two years, Donald Trump has already nominated 155 people to be judges. In eight years, President Obama nominated 392. Trump’s nomination rate is more than twice that of his predecessor, mostly because from 2014-16, Senate Republicans stonewalled an unprecedented number of Obama’s judicial nominees: 68 of them, from should-be Supreme Court Justice Merrick Garland on down.
Those vacancies have now been filled largely by hard-right conservatives who passed the litmus tests of the Federalist Society and Judicial Confirmation Network, both of which are controlled by a tiny coterie of religious fundamentalists. Both organizations also espouse legal philosophies that were once well outside the legal mainstream, but are now unequivocally part of it. And while the Federalist Society claims 4 percent of America’s lawyers as members, those members make up over 80 percent of Trump’s appellate court nominees.
Of course, conservative presidents are going to appoint conservative judges. That’s how the system works. But many of Trump’s judges aren’t merely conservative: some are unqualified, some are extreme, some lack the temperament appropriate to their esteemed positions. And some, Senator Sheldon Whitehouse (D-RI) told The Daily Beast, are essentially activists.
“Like clockwork, once they don their robes, the Federalist Society’s self-proclaimed ‘judicial conservatives’ morph into judicial activists,” he said. “Take one of the Fifth Circuit judges we considered, James Ho. In our committee, he waxed on about ‘respecting precedent’ and pledged to separate his extreme personal views from his jurisprudence. Then, immediately once confirmed, he authored an opinion calling abortion a ‘moral tragedy.’”
The result was predictable: several unqualified, ill-tempered judges who will now serve for decades on the bench. Here are ten of the worst:
1. Brett Kavanaugh (Supreme Court)
Obviously, Justice Kavanaugh’s spectacularly messy confirmation drama places him atop this list. Even before Dr. Christine Blasey Ford testified before the Senate, Kavanaugh had baldly lied under oath about his role in a controversial 2006 judicial nomination, a 2003 scandal involving leaked congressional memos, and the Bush “warrantless wiretap” program. And whatever one makes of Dr. Ford’s accusations, surely Kavanaugh’s blustering demonstration of partisan, male rage at his own confirmation hearing was a shocking display of judicial non-temperament.
Still, many Republicans loved it. They praised toxic masculinity as masculine strength, and shared Kavanaugh’s rage at having been unjustly accused. Never mind Kavanaugh’s long history of alcohol abuse, documented in dozens of sources, including the memoir of his former best friend. (Unless “Bart O’Kavanaugh” is someone else, of course.)
Kavanaugh’s confirmation was also the most visible example of the shocking, precedent-shattering confirmation process led by Senator Charles Grassley, the Republican Judiciary Committee chairman, who “stacked” multiple judicial candidates in single hearings, rushed through nominations even before the ABA could issue its evaluations of candidates, and dispensed with a century-old tradition requiring the assent of a nominee’s home-state senators.
Kavanaugh’s was the most egregious example of this rushed, messy process, with its one-week FBI “investigation” of a credible sexual assault accusation and its suppression of over 75 percent of the records of Kavanaugh’s tenure in the Bush white house. But similar processes took place in miniature dozens of times: rushed hearings, insufficient vetting, and party-line votes.
In popular culture, Kavanaugh may be just another funny Saturday Night Live bit, thanks to Matt Damon’s hilarious portrayal of him. But he’ll likely be on the Supreme Court when your unborn children graduate from college.
2. John K. Bush (Sixth Circuit Court of Appeals)
As obscure as Kavanaugh is famous, Judge John K. Bush, now serving on the Sixth Circuit Court of Appeals, had a disgraceful record as a pseudonymous right-wing blogger, and then lied about that record during his confirmation hearing.
For years, Bush blogged under the name “G. Morris.” In 2008, Bush repeated “birther” claims that “Obama’s kin” living in Kenya was a criminal, and that President Obama didn’t write his book, Dreams from my Father. But he omitted and then denied the exclusively Birtherite sources of these lies in his confirmation hearing.
Bush also stated “the two greatest tragedies in our country—slavery and abortion—relied on similar reasoning and activist justices at the U.S. Supreme Court, first in the Dred Scott decision, and later in Roe.” But when pressed on the comparison between slavery and abortion (which is common in pro-life circles), Bush denied he was comparing the two at all.
It’s as if Rush Limbaugh is now a federal judge.
3. Stuart Kyle Duncan (Fifth Circuit Court of Appeals)
Trump nominated several anti-LGBT crusaders to the bench, but none more zealous than Kyle Duncan, who said that Obergefell v. Hodges (which legalized same-sex marriage) “raises a question about the legitimacy of the Court,” that transgender people are “delusional,” and that state-funded adoption agencies should be able to turn away gay people. Duncan’s actions speak even louder than his words: he was lead counsel in the Hobby Lobby case, which transformed religious freedom from a shield into a sword; he defended the Defense of Marriage Act in several cases; and in 2016, he defended the school board seeking to ban trans high-school student Gavin Grimm from using the men’s room. His entire career was built on limiting the rights of LGBT people, in case after case after case.
4. Jonathan Kobes (Eighth Circuit Court of Appeals)
In its lame-duck session this month, the Senate rushed to confirm two controversial judicial nominees: Thomas Farr, whose nomination was sunk by the chamber’s lone African-American Republican, and Jonathan Kobes, who was confirmed along party lines despite being rated “not qualified” by the ABA.
Kobes, 44, was an aide to South Dakota Senator Mike Rounds and a loyal Republican party hack. But he hasn’t practiced law in years, only argued six cases in his career, and has written zero academic articles. Moreover, he failed to provide an adequate writing sample to the ABA, which said that “none of the writing that we reviewed is reflective of complex legal analysis, knowledge of the law, or ability to write about complex matters in a clear and cogent manner—qualities that are essential for a circuit court judge.”
What little record Kobes had was as an anti-abortion extremist, representing a group of fake women’s health centers in a 2005 case, and serving on the board of an adoption agency that harasses women seeking abortions. Now he’s on the federal bench for life.
5. Amy Coney Barrett (Seventh Circuit Court of Appeals)
When Brett Kavanaugh was tapped to replace Justice Anthony Kennedy, many in the Christian Right were disappointed that Amy Coney Barrett didn’t get the nod. Because Barrett, appointed in 2017 to the Seventh Circuit Court of Appeals, is one of the flock. She is part of an idiosyncratic sect called the People of Praise (“Hard to Understand and That’s OK,” its website says). That, of course, is her business—except for the fact that, in her own words, as she told Notre Dame graduates in 2006 that “Your legal career is but a means to an end, and… that end is building the kingdom of God.”
Moreover, Barrett once argued in a law review article, it would be immoral for an “orthodox Catholic” judge to “cooperate” with abortion or the death penalty. Again, as a personal matter of faith, that is none of the public’s business. But the reason the Christian Right loves Judge Barrett is the same reason that women, LGBT people, and others, would have reason to wonder about her impartiality.
6. Leonard Steven Grasz (Eighth Circuit Court of Appeals)
Another of Trump’s nominees rated “not qualified” by the ABA, now-Judge Grasz was cited by the organization for his “lack of open-mindedness and freedom from bias.” Indeed, the ABA report noted that their investigator “received numerous statements of concern about his judicial temperament. She also noted a reluctance by members of the Nebraska Bar to participate in the evaluation.” Such an assessment is almost without precedent, and because of Senator Grassley’s expedited process, the public never got a chance to learn more about it.
We do know that Grasz was the director of the Nebraska Family Alliance, and among other things, fought to deny Medicaid coverage to a rape victim seeking an abortion. But it’s what we don’t know—what’s behind the shocking ABA rating, and why so many lawyers refused to even talk to them—that makes Grasz’s confirmation so disturbing. And we probably never will.
7. Mark Norris (Western District of Tennessee)
Mark Norris, former majority leader of the Tennessee Senate, was called by the left-leaning Alliance for Justice “an extreme outlier even among Trump nominees.” During his tenure, Norris tried to block refugees from being settled in Nebraska (going up against Attorney General Jeff Sessions), set up a website using images of refugees alongside images of ISIS terrorists, tried to ban cities from removing Confederate statues, and pushed legislation dubbed the “LGBT Erasure Bill” that would have invalidated same-sex marriages in direct violation of Obergefell.
He was confirmed by a vote of 51-44.
8. Andrew Oldham (Fifth Circuit Court of Appeals)
Andrew Oldham made his mark as general counsel to Texas Governor Greg Abbott. In that role, he advanced an effort to amend the U.S. Constitution to dismantle the Department of Labor, the EPA, and other administrative agencies. He also believes that all antitrust law is unconstitutional. And during his confirmation hearings, Oldham refused to agree that Brown v. Board of Education was correctly decided. In one exchange, Senator Kamala Harris asked Oldham four times whether discrimination in voting even exists—something multiple courts have acknowledged in recent years. He refused to answer.
Oldham will now have the opportunity to implement his radical constitutional views on one of the highest courts in the land.
9. Patrick Wyrick (Western District of Oklahoma)
Like Oldham, Wyrick made his name as someone else’s deputy: in this case, Oklahoma Attorney General Scott Pruitt, who went on to one of the most ignominious cabinet-level tenures in recent history. There, Wyrick was the point man connecting Pruitt’s office to Devon Energy, which ghost-wrote letters Pruitt cut-and-pasted onto government letterhead and which received sweetheart deals in Oklahoma and later when Pruitt headed the EPA. Amazingly, Wyrick blatantly defied conflict of interest rules by continuing to own stock in the company.
He also spent years challenging a vast array of environmental regulations, suing the federal government at (double) taxpayer expense, and usually losing. At the tender age of 37, he’s said to be on Trump’s shortlist for a seat on the Supreme Court.
10. Neil Gorsuch (Supreme Court)
In fairness to Justice Gorsuch, he’s made this top-ten list primarily because he isn’t Merrick Garland. In fact, while Justice Gorsuch’s judicial philosophy is to the right of everyone not named Clarence Thomas, his temperament, intelligence, and qualifications couldn’t be more unlike the other people on this list.
Still, Gorsuch’s name should have an asterisk next to it for the duration of his career. Like the 2000 and 2016 presidential elections, his appointment remains an open wound on American democracy. There is no precedent for what Mitch McConnell’s Senate did to Judge Merrick Garland (full disclosure, my former boss), and Justice Gorsuch is the beneficiary of that.
Gorsuch is a reminder—one which the irate Lindsay Graham apparently requires—of when the Republicans threw out the rulebook. (Indeed, the GOP had to junk the rules a second time to get Gorsuch confirmed, ending the filibuster for Supreme Court nomination votes.) Gorsuch is like an illegitimate child in the 19th century: it’s not his fault, but he is an ever-present reminder of sin.
Finally, it’s worth noting some of those whose nominations died in the 115th Congress but may well return in the 116th: Thomas Farr, the architect of North Carolina’s racist voter suppression laws; Matthew Kacsmaryk, who wrote that LGBT equality means that “marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults”; Jeff Mateer, who called transgender kids evidence of “Satan’s plan”; Ryan Bounds, who wrote racist articles as a college student; and Damien Schiff, who has opined that OSHA is unconstitutional and “the only useful metric for gauging success is money.” Keep your eyes out for them in the spring.
Kristine Lucius, executive vice president of policy at The Leadership Conference on Civil and Human Rights, told The Daily Beast: “This past Congress, Trump and the Senate Republicans launched a coordinated attack on the federal judiciary. Confirming dangerously extreme individuals for lifetime seats is reshaping our impartial judicial branch in their image—an impact that will last decades longer than one presidency or Congress.”
Lucius added that “In the New Year, the Senate must reassert its institutional role and act as a check on a dangerous president to protect our civil and human rights.”
On the other hand, Leonard Leo, an extreme religious fundamentalist whose network of organizations—the Federalist Society, the Judicial Confirmation Network, and others—is largely responsible for these judges’ ascensions to the bench, said in May that “I would love to see the courts unrecognizable.” For those of us whose rights depend on the rule of law, that is a terrifying objective. And it’s one that has largely been accomplished.