Analysis Law and Policy

Trump’s Latest Judicial Picks Continue To Be Terrible for Abortion Rights

Jessica Mason Pieklo

The conservative right is on a mission to immediately pack the federal courts with as many anti-choice judges as they can.

Although President Donald Trump has faltered in fully implementing some of his biggest campaign promises, he has been very good at packing the federal courts with officials that, should they all get confirmed, would change federal law for decades. Perhaps irreversibly. 

Trump has already outpaced both Presidents George W. Bush and Barack Obama on judicial nominations, with five judges confirmed since January, including Associate Supreme Court Justice Neil Gorsuch. Not surprisingly, those judges exist far outside the legal mainstream. They align far more with the extremism of Justice Clarence Thomas than with the problematically squishy jurisprudence of moderate conservative Justice Anthony Kennedy. 

The fifth and latest confirmation happened late last month, when the U.S. Senate confirmed to the U.S. Court of Appeals for the Eleventh Circuit Kevin Newsom, a 44-year-old attorney from Alabama who in 2000, wrote a law review article equating the rationale of Roe v. Wade to Dred Scott v. Sandford, the infamous 1857 decision upholding slavery. Here’s the only response needed to that nonsense.

President Barack Obama had nominated federal district court judge Abdul Kallon to fill the vacancy Newsom now occupies. Like Newsom, Kallon was a former partner at the Bradley Arant law firm. Once Kallon was nominated to the Eleventh Circuit, however, Sen. Richard Shelby (R-AL) and then-Sen. Jeff Sessions (R-AL) refused to return “blue slips,” the process in the Senate that advances judicial nominations forward. Without a blue slip, the Senate Judiciary Committee is unable to take any action on the nomination. That means under the Obama administration the seat was left vacant for two years.

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Had Republicans not sat on the Kallon nomination, he would have likely become the first Black judge from Alabama to sit on the Eleventh Circuit Court of Appeals.

But back to the judge we got for that seat instead. When Newsom wasn’t busy comparing abortion to slavery, after he was hired as Alabama’s solicitor general by fellow arch-conservative and rumored Trump Supreme Court short-lister William Pryor, he advocated aggressively for Alabama’s right to execute people. In 2005, the U.S. Supreme Court ruled executing juveniles unconstitutional; Newsom expressed disagreement with that decision. He would then go on to defend Alabama’s policy of refusing legal counsel to death row inmates looking to challenge their convictions—that’s how strongly he believes in the state’s right to execute people. 

Among Trump’s other nominees is Steve Grasz, an attorney currently in private practice focusing on business matters. But Grasz previously served as Nebraska’s chief deputy attorney general, during which he defended a Nebraska statute prohibiting so-called partial-birth abortion at the Supreme Court in Stenberg v. Carhart. 

Grasz lost Stenberg v. Carhart, and the Nebraska law was struck down. Notably, however, Justice Kennedy authored a searing dissent in Stenberg attacking “abortionist” providers and appearing to wholeheartedly buy the myth that “partial-birth abortion” is a medical procedure, rather than an anti-choice marketing term used to outlaw a provably safe method of second-trimester abortions. Republicans in U.S. Congress would ultimately pass a modified version of the law, which the Supreme Court would hold up in 2007 in Gonzales v. Carhart. In his opinion, Justice Kennedy discussed “abortion regret syndrome,” another anti-choice talking point grounded in junk science that has evolved to claims that fetuses feel pain at 20 weeks. Here, Kennedy appeared to be picking up largely on the failed rhetoric advanced by Grasz in Stenberg.

Should he be confirmed, Grasz would sit on the Eighth Circuit Court of Appeals where states like Arkansas, Missouri, and South Dakota have either passed or tried to pass dilation and evacuation (D and E) abortion bans. Arkansas passed such a ban, but it is currently blocked by federal court order. If one of the other states passes such a ban, and if a federal court—such as the Eighth Circuit—upholds it, conservatives may have found another pathway to attacking Roe. They are also hoping this kind of legal outcome happens while Justice Kennedy is still on the bench, as his dissent in Stenberg suggests he’s at least open to further banning specific abortion procedures.

This is, sadly, just the tip of the iceberg when it comes to the threats Trump’s nominations pose to the federal courts. For example, the Senate last month confirmed former political blogger John Bush for the Sixth Circuit Court of Appeals. Bush also has a habit of comparing abortion with slavery, though during his confirmation hearing he tried to distance those statements as “personal views” rather than ones that would influence his decision making while on the bench. 

With more than 100 federal court vacancies, reproductive rights advocates have a long road ahead to protect the fundamental right to reproductive autonomy. And it’s likely to only get longer.

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