President Trump announced ten federal judicial nominees today. All of them will sail through the Senate. All of them will fill seats stolen from President Obama.
There are over 120 vacancies in the federal judiciary, and Obama had nominated people to fill 81 of them. But by the end of his two terms, 59 of those nominees were still in limbo, because Mitch McConnell’s Senate confirmed only 22.
This week, ten new nominees were announced to take their seats—as promised, mostly conservative firebrands picked by the Heritage Foundation and Federalist Society—with many more sure to come. The Republicans’ strategy of unprecedented obstructionism has, once again, paid off in spades. If you think Judge Merrick Garland’s Supreme Court seat was stolen, well, here’s 59 more of them.
And that doesn’t even count the seats Obama didn’t even bother trying to fill, including several nominations which had lapsed due to Senate inaction.
To be sure, no party rushes to confirm the other party’s nominees. But the Republican-controlled Senate of 2015-16 was different. When the Democrats controlled the Senate in the last two years of the Bush administration, they confirmed 68 nominees—58% of those put forward—compared with 22 during 2015-16, or 25%.
The result will be a decades-long transformation of the federal judiciary. In Texas alone, for example, 11 open district court seats will be filled by Trump nominees who will hear immigration appeals, death row appeals, racially charged criminal cases, and the hundreds of everyday matters that make up a federal judge’s workload. All of those judges will be hand-picked from the most conservative edge of the conservative legal world. Just imagine the impact.
Indeed, while the presidential campaign seemed primarily to be about the peccadillos of the respective candidates—emails, locker rooms, pantsuits, even male anatomy—the effects of presidential elections have more to do with thousands of presidential appointees than with the occupant of the Oval Office. The vast majority of these escape our notice—undersecretaries here, deputies there—and yet they are the ones who decide whether a forest is saved or cut, whether a school LGBT program is funded or not, whether a refugee is admitted or turned away.
In the case of the judiciary, perhaps the most disturbing impact of the coming flood of nominees will be on cases involving Trump himself. Already, the young administration has seen two of its signature efforts – the travel ban on Muslim nations and the attempt to defund so-called sanctuary cities—stymied in the courts. Cases are underway challenging Trump’s recent “religious liberty” order, and will soon be filed challenging the un-designation of national monuments across the country.
Not to mention potential legal action against Attorney General Jeff Sessions and EPA Director Scott Pruitt, both of whom told falsehoods during their confirmation hearings, and most importantly of all, the Trump campaign and administration officials involved in as-yet-to-be-determined dealings with Russia.
This is not to imply that Trump’s nominees cannot be objective. Indeed, the ten announced this week include several state court judges and law professors with distinguished records. The point is that they have been chosen by ideological organizations because of their political opinions and affiliations. It’s not about bias; it’s about beliefs. And those beliefs have consequences in how close cases are decided.
Take Bush v. Gore, the low point of the last century of Supreme Court jurisprudence, in which supposedly federalist judges twisted themselves in a knot to overturn a state court decision. Or Citizens United, which held that money is speech and corporations are people. Conservative judges don’t always make conservative decisions—consider Chief Justice John Roberts’ Obamacare opinions, for example—but they do so more of the time. That is why the Heritage Foundation has put their names in the hat. And why the leading “dark money funders” of the Coors, Scaife, and Koch families have funded the Heritage Foundation.
“But her emails!” It’s a sarcastic slogan now, muttered by embittered Democrats in response to the threat of nuclear exchange, the largest transfer of wealth to the wealthiest in American history, the endless conflicts of interest, the deportations, the bans, the whole tragedy and farce of the Trump administration. And it’s exactly right: while voters were swayed by a personal dislike of Hillary Clinton (and disillusioned progressives preferred to waste their time on a pointless pipeline protest), now that the election is over, its real effects become clear.
The election was never about Trump vs. Clinton; it was about which faction was to lead our country, with thousands of judges, bureaucrats, and administrators who steer the ship of state in one direction or another. Today we’ve met ten more of them, each of whom will hear thousands of cases during their lifetime-appointment careers.
If they fulfill the hopes of their backers, they will move the country rightward in a thousand small ways, none of which will be covered in the news. Many will be matters of life and death. Many will be matters of money. All will be more important than emails.