Donald Trump hates the Ninth Circuit Court of Appeals, and now he’s getting his revenge: with Mitch McConnell having trashed 100 years of Senate practice on judicial confirmations, Trump is now ramming through hyperpartisan nominees to shift the (supposedly) liberal court far to the right.
The Ninth Circuit has long been a target of conservative ire; Newt Gingrich called it “anti-American.” And while the data on its actual liberalism is mixed (a 2007 study found its rulings to be more liberal than average, but a 2014 study found it less liberal than the First and Third Circuits) it does have notable liberal jurists on it, such as Judge Stephen Reinhardt, who wrote an opinion striking down California’s ban on gay marriage, and Judge Alfred Goodwin, who wrote that the pledge of allegiance’s phrase “under God” (added in 1954) violates the First Amendment.
All that is about to change.
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There are 29 judgeships on the court. When Trump took office, 18 were filled by the nominees of Democratic presidents, seven by Republicans’ and three seats were vacant. Four Trump nominees now sit on the bench, and three more nominees—Daniel Collins, Kenneth Lee, and Daniel Bress—are awaiting Senate votes. Assuming they are confirmed, the court will have 16 Democrat nominees and 12 Republican ones.
So far, there’s nothing unusual here; this is how the system works. Except, Trump and McConnell have broken the system in three ways to push through extreme candidates.
First, for over 100 years, the approval of both home-state senators—called “blue slips”—was required for a judicial nomination to proceed. Back in 2009, McConnell sent President Obama a formal letter, signed by 41 Republicans, alternately praising the “shared constitutional responsibility” of staffing the federal bench and warning that “if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee.”
And indeed, with the assent of Senator Patrick Leahy, then the chair of the judiciary committee, Republican senators blocked 18 Obama nominees by refusing to submit blue slips.
To no one’s surprise, McConnell has reversed himself on that sacred principle now that he is majority leader and a Republican is in the White House: the blue-slip is history. The GOP chairmen of the judiciary committee have simply junked the century-old practice, at least as applied to appellate court. As a result, to take one example, Judge David Stras of Minnesota is now a judge with life tenure on the Eighth Circuit, despite then-Senator Al Franken refusing to submit a blue slip amid widespread condemnation from liberals.
Second, now that a formal requirement for bipartisanship has been eliminated, the Trump administration has abandoned any pretense of nominating mainstream individuals to these life-tenure positions.
Lee and Collins are good examples. Both were specifically opposed by Sens. Harris and Feinstein, who provided the White House with conservative candidates they would find acceptable. (The senators didn’t blue-slip him.)
Lee had concealed incendiary articles he’d written as a college student, among many examples: essays decrying “phony feminist statistics on rape, anorexia; and discriminatory treatment of girls;” calling multiculturalism a “malodorous sickness;” and claiming that “homosexual groups hurl epithets whenever one refused to swallow their hook, line and sinker. And charges of sexism often amount to nothing but irrelevant pouting.” Lee claims it’s mere coincidence that these extreme writings were omitted from his submission to the judiciary committee—a claim that, itself, casts doubt on his character.
Collins, meanwhile, was one of the leading architects of federal mass incarceration when he worked for Attorney General John Ashcroft, and has argued that the Miranda case (“you have the right to remain silent”) should be “jettisoned.”
Now, neither candidate has an obvious scandal marring their record, or even a recent controversial quote—Lee’s are from two decades ago. But both, especially Collins, tilt hard to the right, and avow ideologies that, until the last five years at least, have been well outside the judicial and legal mainstreams. They are exactly the kinds of nominees who would never make it through a process in which “advice and consent” still had its traditional meaning.
Finally, unsatisfied with stacking nomination hearings on top of each other, Republicans have advanced a proposal to slash floor debate on nominees from 30 hours to two. That’s right: a judge may sit on the federal bench for 50 years, but in a rubber-stamp Senate, they’ll only be debated for less than time than it takes to watch Star Wars.
Remarkably, Republicans have even proposed “going nuclear” to push this proposal through. Normally, changes to Senate rules require 60 votes to pass, but to ram this one through, they are considering changing that rule to require only a majority.
Democrats, of course, are outraged.
“We are unilaterally disarming the Senate Judiciary Committee in a way that will have collateral damage well beyond the immediate goal of packing the courts with these nominees in a great rush,” said Sen. Sheldon Whitehouse of Rhode Island.
Yet ironically, these changes will almost certainly come back to haunt the GOP even more.
The Senate stayed Republican in 2018 largely because of luck: it just so happened that relatively few vulnerable Republican incumbents were up for reelection in that year. 2020 is different, and if the Democratic nominee for president has even moderately long coattails, it’s easy to envision the Senate flipping at the same time as the White House.
That will put Democrats in control of the turbo-charged confirmation racecar that Republicans have built.
None other than Senator Lindsey Graham, chairman of the judiciary committee, noted this concern at a recent event of the Federalist Society, the hard-right legal network which represents only 4 percent of American lawyers but 80 percent of Trump’s judicial picks.
“If you don’t have to reach across the aisle to get any votes, judges are going to be just more ideological than they would be otherwise,” Graham said, noting that he worries “a lot about what’s coming” should control of the senate switch hands.
Or as Senator Feinstein put it, “you know what comes up, comes down.”
Before that happens, though, Trump, or more precisely the Federalist Society’s Svengalis who are choosing these nominees, will have placed at least seven men [sic] on the Ninth Circuit, exacting sweet revenge on a court he believes has wronged him. And most of them will still be there long after Trump is gone.
