The White House had three of its judicial nominees withdraw this month—and it wasn’t because they wanted to spend more time with their families.
Two were bloggers whose inflammatory and discriminatory posts caught up with them. The third was humiliated on national television when he couldn’t answer basic questions about the law and had to concede that he had no trial experience, generally a prerequisite for a lifetime appointment on the U.S. District Court for the District of Columbia.
How these three unqualified men got as far as they did says something about the arrogance of the narrow Republican majority in the senate, and leader Mitch McConnell’s ruthlessness in rapidly reshaping the judiciary along ideological lines.
Holding a Supreme Court seat open for a year, denying President Obama his rightful choice, was just the beginning. Democrat Chris Coons, who sits on the Judiciary Committee, calls it “the Rocket Docket.”
The Republican senate last month confirmed four circuit court judges in one week—one more than President Obama got in his entire first year when Democrats controlled the Senate.
In all, Trump has confirmed a record 19 federal judges so far, including 12 circuit court judges.
That compares to the 11 new federal judges in Obama’s first year, including one to the Supreme Court (Sonia Sotomayor), and three Circuit Court judges. At the conclusion of his two terms, Obama left behind almost 150 court vacancies—including a Supreme Court seat—not out of choice, but because he and other Democrats played by the rules and respected the Senate’s 100-year-old “blue slip” tradition, which had given home state senators a real say in judicial nominees.
Republicans used the blue slip to keep open critical judgeships they wanted for themselves, an abuse of power that while it’s not illegal or unconstitutional eroded what comity had been left in a body like the senate, which has always prided itself on being a club where personal relationships grease the legislative wheels.
But now that they control the White House as well as the Senate, Republicans had been so confident they could just wave anybody through that a nominee like Matthew Petersen showed up woefully unprepared for the questioning he got from a Republican senator, John Kennedy of Louisiana. Both men are graduates of the University of Virginia law school, and Kennedy was evidently offended by the dilatory nature of Petersen’s answers.
Kennedy said in a television interview that Petersen is “really smart” and a “decent guy… But just because you’ve seen My Cousin Vinny doesn’t qualify you to be a federal judge.”
Kennedy cast the first Republican vote against any Trump judge, “and he deserves credit,” says Coons. Democrat Sheldon Whitehouse from Rhode Island, who also sits on the Judiciary committee, told The Daily Beast earlier this year that the Republicans have “no gag reflex whatsoever” when it comes to Trump’s judges. “They just wave them through.”
In past administrations, when confirmation was not a certainty, nominees spent days prepping, going before murder boards to make sure they can handle the questions senators would lob at them. The Republicans solved that in part by stacking the hearings with three or four nominees at a time so senators only get one round of five minutes to ask questions.
“This rushed process means we are missing red flags,” Coons said in a conference call early this month organized by the American Constitution Society (ACS), a progressive legal group.
Of the 60 judges that Trump has nominated so far, there has been just one African American, one Hispanic, and one Asian American. Nineteen percent are women, the lowest share since the Reagan administration and less than half the 42 percent women that Obama nominated. (Similarly, of the 42 U.S. attorneys Trump has nominated, 41 are men.)
This is the ultimate revenge of Trump’s base: the whiter, the maler, the better.
And Trump has maintained his support on the right, which has always put a premium on gaining ground in the courts, by offering picks who are uniformly far to the right on social and cultural issues, and also on what can be termed corporate personhood.
“There’s very little Democrats can do with the numbers we have and the rules that are in place,” Coons said at the end of his call with the ACS.
The only chance of changing the rules may be to change the numbers. If Democrats regain the majority next year, it may be time for them do unto others as they have had done unto them.