While the world is distracted by his tweets, Donald Trump has already transformed the federal judiciary, nominating judges far outside the mainstream to lifetime terms. These candidates, handpicked by Leonard Leo, an extreme Catholic fundamentalist at the Federalist Society, would never have been considered by George W. Bush or Ronald Reagan, yet are being fast-tracked through the Senate by the Republican Leadership.
Some of them are truly shocking.
The Lawyer for Voter Suppression
To the Eastern District Court of North Carolina, Trump/Leo has nominated Thomas Farr, whose nomination is being voted on by the Senate Judiciary Committee this Thursday, October 19th. A bit of background: the Eastern District is 30% African-American, and includes most of the so-called “Black Belt” in which most of the African-Americans in North Carolina live. Yet it has never had an African-American judge in its 143-year history. President Obama nominated two highly qualified candidates, both African-American women, but neither received even a hearing because the state’s Republican senators failed to endorse them, as is the longstanding Senate custom.
To that seat, one of 59 stolen from President Obama by Republican obstructionism, Trump has named Farr, whom the Congressional Black Caucus described as “the preeminent attorney for North Carolina Republicans seeking to curtail the voting rights of people of color.”
But not just the CBC – recall that a federal appeals court struck down North Carolina’s voting restrictions in 2016, 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.”
Farr had helped craft those very restrictions in the legislature, then argued for them in court. In his unsuccessful appeal of the decision, he called the circuit court decision “ludicrous.” (Farr’s disrespect of judicial process is widespread; he called the Supreme Court’s decision on Obamacare reminiscent of Plessy v. Ferguson, which upheld segregation.)
Dig deeper into Farr’s background, and his record becomes even more shocking. In 1990, working for longtime segregationist Senator Jesse Helms, Farr was the lawyer defending the Helms campaign’s tactic of sending 125,000 postcards to predominantly African-American communities falsely stating that they could be arrested for voter fraud at their polling stations.
Farr denied knowledge of the tactic, but was identified in a Justice Department complaint as being present at the meeting when it was discussed.
Subsequently, Farr has been the lawyer of record defending North Carolina’s gerrymandering of state and federal election districts, and for its violations of the National Voter Registration Act. As the CBC put it, “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.”
Again, this is the district where most of the state’s African-Americans live, and the nominee is arguably the person most responsible for trying to disenfranchise them.
Rev. William Barber, President of the North Carolina NAACP, said that “if this nomination is confirmed, it represents an historic insult to justice and to the people of North Carolina.”
Then there’s Jeff Mateer, whom Leo/Trump has nominated to the Eastern District of Texas. Another lifetime term, another extremist.
In 2015, Mateer said in a speech that parents suing on behalf of their transgender children “really shows you how Satan's plan is working and the destruction that's going on.”
In the same speech, he said regarding same-sex marriage that “there'll be no line there… I mean, it's disgusting. I've learned words I didn't know... Somebody wanted to marry a tree. People marrying their pets. It's just like -- you know, you read the New Testament and you read about all the things and you think, 'Oh, that's not going on in our community.' Oh yes it is. We're back to that time where debauchery rules.”
Also in 2015, Mateer attended the ‘National Religious Liberty Conference’ hosted by Kevin Swanson, who has said that society should impose the death penalty for homosexuality (as long as gay people can repent first), has predicted that God will punish America because of Harry Potter’s “homosexual mentor,” has said that the movie Frozen is a Satanic plot to make children gay, and has blamed Hurricane Harvey on Houston’s “pro-homosexual mayor.”
At the conference, Mateer defended the odious and discredited practice of “conversion therapy,” which attempts to transform gay people into straight people, with a near-zero success rate. He also said that no honest attorney could defend the Supreme Court’s marriage equality decision, and gave a presentation warning of LGBT “brainwashing” and “reprogramming” efforts.
Perhaps most troubling of all, at the same conference, Mateer undermined the rule of law itself, saying that Obergefell v. Hodges is “not the law of the land” because “it’s a 5-4 decision with Justice Kennedy joining the four liberals.” This is someone whose life-tenure job would require him to respect Supreme Court precedent.
Moreover, like Farr, Mateer’s extremism goes way back. He served for many years as the general counsel to the First Liberty Institute, which has represented anti-gay hate groups and those who have opposed “the LGBTQXYZ crowd and the Gaystapo.”
Unsurprisingly, the Lambda Legal Defense Fund, on behalf of 35 LGBT organizations, sent a letter on October 16 urging the Senate to vote down the nomination. Mateer’s “brazen contempt for LGBT people renders him wholly unfit for a lifetime appointment to the federal bench,” the group said.
The Bloggers on the Bench
The truth is, this opposition doesn’t stand a chance. Judges are being rushed through a truncated confirmation process by Senator Charles Grassley’s judiciary committee, which, of course, stonewalled Supreme Court nominee Merrick Garland and 58 other judicial nominees of President Obama. They are getting rubber-stamped in party line votes, no matter what comes out in the confirmation process. Zero have been derailed.
That’s how we got John Bush already sitting on the Sixth Circuit Court of Appeals, even though he clearly lied to the Senate about his blog posts – made under the pseudonym G. Morris – endorsing Birtherism and comparing abortion to slavery.
That’s how we got Supreme Court Justice Neil Gorsuch, who in his short time on the bench has already outflanked the entire court on the right, arguing for a wide expansion of government funding of religious institutions, limiting the application of Obergefell to the narrowest possible interpretation of it, and questioning the court’s jurisprudence on voting rights.
That’s how Professor Amy Barrett sailed through her confirmation hearings for the 7th Circuit Court of Appeals, despite having 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.”
That’s how we’re about to get Damien Schiff on the federal Court of Claims, despite Schiff having described Justice Kennedy on his blog a “judicial prostitute” who only voted for same-sex marriage to secure his own power. At least his blog was under his own name.
And that’s how Steven Schwartz, another lawyer for North Carolina’s race-based voting laws, is likely to join Schiff on the Court of Claims. “In just the last two years, Schwartz managed to represent Jeb Bush against DACA recipients, Gloucester County against transgender students, North Carolina against people of color, and Louisiana against women,” wrote the Alliance for Justice in their report on the nominee. Yet still Schwartz has found time to opine that hip-hop artists have not “mastered the English language” and should not be considered as real artists.
Judicial nominations are rarely headline news, especially when the headlines include a United States president defending white supremacists, threatening news networks, throwing paper towels at hurricane victims, insulting gold-star families, ordering athletes to stand for the national anthem, banning transgender people from military service, and picking fights with celebrities.
And anyway, there’s not much progressives can do other than call their senators, whose votes – except for the half dozen moderate Republicans who have so far hewn to the party line – are pretty well known in advance. Your sense of powerlessness is justified.
But some of these judges will still be deciding in cases in the year 2050, assuming we make it that far. Long after Twitter is forgotten, they will hold people’s lives in their hands.