The long line of Donald Trump-appointed judges is coming to an end, but not before Republicans waved through a last-minute appointment on Tuesday to the Court of Federal Claims, a court that gets little attention, and a nominee, Stephen Schwartz, who had been stalled for four years in part because he’s so unsuited at his young age for the lifetime position.
The Court of Federal Claims has been called the “keeper of the nation’s conscience” and “the People’s Court.” It’s where people go to sue the federal government about contract disputes, taxes, patent and copyright matters, civilian and military pay cases, and most tantalizing given the country’s health crisis, vaccine cases.
In his short career, Schwartz, 36 and a member of the Federalist Society, has gone out of his way in his legal practice to disparage federal institutions and regulations that represent immigrants, transgender youth, and people of color. In writings he initially concealed, published when he was a student at Yale, he said, “Government spending on Social Security, welfare, medical care, and the like is harmful not only to society as a whole but also to the beneficiaries of such programs... People who come to depend on an outside agent (be it a patron, government, or parent) for their livelihoods are inevitably somewhat less than fully mature adults.”
In the same article for the Yale Herald, Schwartz wrote, “The modern aim of guaranteeing [the elderly] a comfortable, modern standard of living and full medical coverage is not… a worthwhile goal for the government to undertake.”
Schwartz’ views are well outside of the mainstream, even for Trump appointees. “He’s been on the front lines of litigation on abortion, voting rights and transgender rights,” says Dan Goldberg with the Alliance for Justice, a liberal advocacy group. “He’s a movement lawyer.”
In 2006, arguing for austere federal budget cuts, he wrote that government departments like Transportation, Education and Agriculture have no constitutional basis to exist. In 2016, he argued on behalf of North Carolina’s failed attempt to get the Supreme Court to review a lower court ruling that struck down a restrictive voter law that the court said targeted African American voters “with almost surgical precision.”
Taking into account his low regard for government and the services that it provides, Schwartz seems an odd fit for Special Master of the Court of Federal Claims. Ever since he was first nominated in July 2017, liberal groups have long argued against his confirmation, and Republicans weren’t in a big hurry until now, when the clock is ticking toward the end of Trump’s term. Schwartz’s nomination stalled from one Congress to the next and didn’t succeed until resubmitted a third time for passage in a lame duck Congress.
He’s another notch in Senate Leader Mitch McConnell’s record of conservative judges signed, sealed and delivered. It’s about all the Senate under McConnell’s leadership has been doing. By comparison, when Obama was preparing to end his term in office, the Republican-led Senate didn’t pass another Obama judge after July 2016, and famously refused to even consider Obama’s nominee for the Supreme Court, Merrick Garland, whom Obama had nominated that March. Obama’s nominees for the Court of Federal Claims never received a floor vote.
With a new president ready to be sworn in, and the likelihood that Republicans will maintain their narrow margin in the Senate, the question that looms is whether McConnell will change his tune. One of McConnell’s best buddies in the GOP caucus, Tennessee Senator Lamar Alexander, who is retiring, used his valedictory speech on the Senate floor to lament the fact that the Senate does little legislating. He said being in today’s Senate is like “joining the Grand Ole Opry and not being allowed to sing.”
McConnell teared up bidding farewell to Alexander. Hard to imagine, I know, and it’s doubtful his colleague’s gentle dig is what moved McConnell to get off the sidelines and show some interest in engaging with Democrats and with his own Republicans on a COVID relief package. People are suffering economically across the country, and food lines are reminiscent of the bread lines during the Depression. The virus is raging, and states and local governments need help to keep schools open and ramp up their delivery systems for the coming vaccine.
None of that appears to move the man dubbed “the executioner” for placing every bill passed by the Democratic House in a graveyard of his making.
What has changed are the politics. Those familiar with McConnell’s thinking believe he has concluded that he can’t let the two Georgia senators, David Perdue and Kelly Loeffler, return to the campaign trail without passing COVID relief. Both are in runoff races on Jan. 5, and McConnell’s majority depends on Republicans winning at least one of those seats.
The two senators were not present for the vote to confirm Schwartz, but they always vote in lockstep for McConnell’s judges. “They should be asked if they believe their constituents who receive Social Security, Medicare, and Medicaid are less than fully mature adults,” says Goldberg with the Alliance for Justice. “And if they don’t believe that, how can they give the awesome power of a judge to someone who does?”
Now that the parade of conservative judges is nearing an end, maybe the call of legacy with another longtime friend if not buddy, President-elect Biden, will have an impact on McConnell. Surely, he can’t be impervious to history. He has the late Senator Ted Kennedy’s office in the Russell Senate Office Building, a prime piece of real estate that has a balcony and looks out at the Capitol. A former Kennedy staffer says she imagines installing an overhead speaker with Kennedy’s voice booming, “Mitch, have you no sense of shame…”