Donald Trump’s federal bench picks look like a MAGA rally.
Of the 48 people he’s nominated to appellate courts, none are black or Latino. Thirty-nine of them are men. Eighty percent come from the far-right Federalist Society, though only 4 percent of the nation’s lawyers are members.
But the cream of the ultra-white crop is being pushed through by Senate Majority Leader Mitch McConnell right now: longtime Republican lawyer and political operative Thomas Farr, up for a life-tenure judgeship in the Eastern District of North Carolina.
“Even among dangerous Trump nominees Farr stands out for his decades-long crusade to disenfranchise African Americans,” the NAACP said in a statement Thursday. “He learned how to intimidate Black voters from segregationist Sen. Jesse Helms and helped turn North Carolina into ground zero for voter suppression. His nomination is a travesty. His confirmation would be heresy.”
The Senate vote on his nomination is scheduled for the Monday after Thanksgiving, which comes on the heels of an election in which voter suppression was a major issue in a half-dozen other states, including North Carolina.
Farr’s record is astonishing.
In 2016, a federal appeals court struck down North Carolina’s array of voting restrictions, finding that they “target[ed] African Americans with almost surgical precision... The only clear factor linking these various ‘reforms’ is their impact on African American voters.”
That was unprecedented language, and it was backed up with page after page of statistical evidence, legislative history, and data on the effects of the new rules.
The main author of the law was Thomas Farr. Farr also defended the law in court, disrespecting the circuit court by calling its landmark decision “ludicrous.”
As the NAACP statement says, however, Farr’s record goes back much further.
In 1990, Farr was the lawyer defending longtime segregationist Helms in a lawsuit over 125,000 postcards Helms’s campaign sent to predominantly African-American communities, falsely stating that they could be arrested for voter fraud at their polling stations. Ultimately the case was resolved by consent decree, which Farr signed. And though Farr later denied knowing about it, he was identified in a Justice Department memo as being present at the meeting when it was first discussed.
The extent of Farr’s involvement with the postcard campaign has never been conclusively established.
Rev. William Barber, co-chair of the Poor People’s Campaign and a leading religious voice for civil rights, called Farr’s nomination “moral poison.”
In the words of the Congressional Black Caucus, “had the White House deliberately sought to identify an attorney in North Carolina with a more hostile record on African-American voting rights and workers’ rights than Thomas Farr, it could hardly have done so.”
The Eastern District of North Carolina is where most of the state’s African-Americans live, and Farr is arguably the person most responsible for trying to disenfranchise them.
“Every American should be alarmed by the attempt to confirm a nominee with Farr’s egregious record on voting rights, particularly with the Republican agenda to maintain power by limiting access to the ballot now on full display,” said Senate Minority Leader Charles Schumer in a tweet Thursday.
Farr’s nomination has been bitterly opposed by every Democrat in the Senate, making McConnell’s recent paean to bipartisanship seem hypocritical at best.
"Leader McConnell, who famously pledged that his top priority was to obstruct the previous president's agenda, is now calling for a spirit of bipartisanship,” Kristine Lucius, executive vice president of policy at The Leadership Conference on Civil and Human Rights, told The Daily Beast. “If he is actually committed to that pledge, he must stop trying to pack the courts with Trump's extreme nominees.”
Farr’s confirmation is by no means assured.
In July, the White House withdrew the nomination of Ryan Bounds to the Ninth Circuit Court of Appeals after racially charged articles he had written as a college student came to light. That caused Sen. Tim Scott, the Senate’s lone black Republican, to withdraw his support. And with the Republicans’ razor-thin majority in the lame-duck Senate, one defection was enough.
If Bounds was withdrawn, why not Farr? Bounds’ essays were deeply offensive—“race-focused groups foster race-think, and the only way to rid our multicultural community of race-think is to rid it of these invidious factions,” he wrote in one—but they were, after all, campus newspaper articles from 20 years ago.
By contrast, Farr has been leading the fight to disenfranchise minority communities since before Bounds even went to college, and he has been bitterly opposed by the NAACP and other civil rights organizations.
Could Tim Scott—or Jeff Flake, Susan Collins, or Lisa Murkowski—doom Farr’s nomination as well? Flake has said he would not vote for any judicial nominee until a bill protecting special counsel Robert Mueller is voted on (that seems unlikely to happen). Then there are the Republican senators up for re-election in 2020 in swing states; they, too, might draw the line at the “vote-suppressor in chief,” as NAACP calls him.
Along with Farr, McConnell has scheduled a vote on Jonathan Kobes, nominated by Trump to the Eighth Circuit Court of Appeals. Remarkably, Kobes was deemed “not qualified” by the American Bar Association, which used to be a rare event until the Donald Trump-Leonard Leo nomination blitz began. (Six Trump nominees have been thus designated, a record. None of President Obama’s nominees were rated not qualified.)
Explaining its decision, the ABA said in a letter to the Judiciary Committee that “Mr. Kobes has neither the requisite experience nor evidence of his ability to fulfill the scholarly writing required of a United States Circuit Court Judge.” Kobes has worked for years on Capitol Hill, but has almost no appellate court experience (having been involved in only a single case).
Notably, Judiciary Committee chairman Sen. Charles Grassley rushed Kobes’s committee hearing through before the ABA had a chance to issue its designation, much as Grassley rushed the Kavanaugh hearings through before his complete records could be redacted and released. As a result, senators were not able to learn more about the ABA’s decision beyond the letter that they received.
Thus far, Trump and the Senate have confirmed 29 appeals court judges and 53 district court judges, plus two Supreme Court justices. That’s a breakneck pace, so why the rush now?
It had been conventional wisdom that McConnell would force votes on these candidates during the lame-duck session if Republicans lost control of the Senate. Now that they didn’t, and in fact gained seats, it’s hard to see what justifies the rush—except for the obvious fact that election-weary Americans are more focused on turkeys, football, and Black Friday than the extremists, nearly all of them white, whom Trump and McConnell have made federal judges.
Of course, if confirmed, these judges will serve on the bench for decades. Unlike your Thanksgiving hangover, the courts’ Trump hangover will last for most of the 21st century.