Analysis Law and Policy

Senate Committee Considers More Radical Trump Judicial Nominees

Jessica Mason Pieklo

Given that Democrats don’t have the votes to block the nominations, the confirmations of Amy Barrett and Judge Joan Larsen are all but a given.

The U.S. Senate Judiciary Committee on Wednesday considered two more of President Donald Trump’s radically conservative judicial nominees, this time questioning University of Notre Dame law professor Amy Barrett for a spot on the Seventh Circuit Court of Appeals and Michigan Supreme Court Judge Joan Larsen for the Sixth Circuit Court of Appeals. Given that Democrats don’t have the votes to block the nominations, the judges’ confirmations are all but a given.

A Federalist Society member and former law clerk to the late Justice Antonin Scalia, Barrett shares many of the same views as Scalia’s replacement, Associate Justice Neil Gorsuch. Barrett’s record on civil rights issues demonstrates a clear bias in favor of religious groups seeking to avoid complying with state and federal nondiscrimination laws.

Barrett has no judicial record because she has never been a judge, leaving her work as a professor the primary basis for the Senate to evaluate her fitness for the bench.

Barrett sits on Notre Dame’s University Faculty for Life, a campus organization open to any staff member who believes in fetal “personhood” and opposes medically assisted suicide, sometimes called “death with dignity.” In her public appearances, she has said she believes Roe v. Wade is responsible for “abortion on demand” and that Republicans are “heavily invested” in getting judges on the federal bench that would overturn the landmark U.S. Supreme Court case.

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Barrett is no stranger to the fight over the Affordable Care Act’s birth control benefit, either. Not only is her university at the center of one of the cases challenging the accommodation process for religiously affiliated institutions that do not wish to provide contraception without co-pay, she signed a letter in 2012 criticizing the Obama administration’s effort at crafting the accommodation at all. “This is a grave violation of religious freedom and cannot stand.  It is an insult to the intelligence of Catholics, Protestants, Eastern Orthodox Christians, Jews, Muslims, and other people of faith and conscience to imagine that they will accept an assault on their religious liberty if only it is covered up by a cheap accounting trick,” the letter stated.

Not surprisingly, Barrett’s record on LGBTQ rights is just as bad. In 2015 she signed on to a different letter, this one expressing her deep opposition to marriage equality. “We give witness that the Church’s teachings – on the dignity of the human person and the value of human life from conception to natural death; on the meaning of human sexuality, the significance of sexual difference and the complementarity of men and women; on openness to life and the gift of motherhood; and on marriage and family founded on the indissoluble commitment of a man and a woman – provide a sure guide to the Christian life,” that letter stated.

The Seventh Circuit Court of Appeals—which covers Indiana, Wisconsin, and Illinois—is among the more centrist of the federal appeals courts. But that centrist position could change with a Barrett confirmation. The Seventh Circuit is comprised of 11 appellate judges. It currently has four vacancies, for which Trump already has two nominations in the pipeline. And that was before Judge Richard Posner, a conservative but important moderating influence on the court, announced his retirement effective last Saturday. Posner was a critical vote in key cases striking down provisions and laws such as those targeting abortion clinics for closure, like the kind the Supreme Court would eventually find unconstitutional in 2015 in Whole Woman’s Health v. Hellerstedt.

Professor Barrett wasn’t the only conservative nominee the Senate Judiciary Committee questioned Wednesday. Michigan Supreme Court Judge Joan Larsen, should she be confirmed to the Sixth Circuit, would provide conservatives with another important seat on the federal appellate bench. While the Sixth Circuit, which covers Tennessee, Ohio, Michigan, and Kentucky, is more conservative than the Seventh, Larsen’s presence would help push it even farther to the right.

Larsen is another former Scalia law clerk, and was originally a Trump Supreme Court shortlister. She eventually lost the nomination to Justice Gorsuch. 

Like Gorsuch, Larsen worked for the Bush administration on torture and detention issues. Judge Larsen was a deputy assistant U.S. attorney from 2002 to 2003, when the administration’s Office of Legal Counsel was producing legal memos justifying the use of waterboarding and other forms of “enhanced interrogation” that many human rights advocates have argued amount to torture. Like Gorsuch during his confirmation hearing, Larsen dodged questions on her work for the administration on Wednesday, claiming to have lacked personal knowledge of the substance of those memoranda and saying that she could not discuss them because the Senate report on torture during the Bush administration remains classified. 

In 2015, Michigan Gov. Rick Snyder (R) appointed Larsen to the state supreme court, which means she only had two years’ experience as a judge before being nominated to the federal appeals court. The result is a relatively thin judicial record to evaluate her nomination. Notably, though, Larsen recused herself in December 2016 from two appeals by Green Party presidential candidate Jill Stein to seek a recount of the 2016 presidential vote in Michigan. At the time of her recusal, Larsen explained that Trump placing her on his list for potential judicial appointees could create the appearance of a conflict of interest in the case.

Conservatives pushed hard for Larsen’s nomination. The conservative dark money group Judicial Crisis Network spent nearly $140,000 in ads attacking Michigan’s Democratic senators who initially tried to delay her nomination.

After less than a year in office, there is no sign that Trump will relent on his agenda to stack the courts with as many conservative judges as possible. There are approximately 100 judicial vacancies, thanks to long-term Republican obstruction of President Obama’s nominees. On Thursday, Trump announced his seventh round of judicial nominations to fill 16 more of those vacancies. And those will be filled just as issues like transgender rights, the fate of legal abortion, voting rights, and excessive force claims against law enforcement become clear targets for the executive administration and conservative state lawmakers.

So far, the federal courts have been one of the only limits to conservative overreach in restricting civil and human rights. Trump, through his nominations to the federal courts, is clearly intent on changing that.

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