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Commentary Law and Policy

Democrats Are About to Lose the Federal Courts for a Lifetime

Jessica Mason Pieklo

If Democrats don’t take bold action and make the federal courts an electoral priority, we will lose them for a lifetime.

Republicans hit a new milestone in their campaign to capture the federal courts for a lifetime. President Trump has now appointed over 150 judges to the bench, including one-quarter of all judges on federal courts of appeals.

Let that number really sink in: One in four seats on federal courts of appeals is now held by a Trump appointee.

These judges will decide on all manner of issues, from the constitutionality of near-total or total abortion bans, to the legality of efforts to divert federal family planning dollars to religiously affiliated clinics that do not offer contraception and abortion, to attempts to carve out for religious conservatives exceptions from civil rights laws that would allow them to discriminate against LGBTQ people. Unsurprisingly, these appointees are all conservative ideologues and mostly white men who will leave their mark on federal jurisprudence for generations.

It’s a thought so depressing it’s easy to fall into despair. If Democrats don’t do something, anything, to thwart the Republican takeover of the federal judiciary, the civil rights gains we’ve spent decades securing could be wiped out within one presidential administration.

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In fact, Trump appointees are already establishing dangerous precedents for reproductive rights and justice. Judge David Stras on the Eighth Circuit Court of Appeals was the deciding vote to uphold a federal manslaughter indictment against a South Dakota woman for drug use while pregnant that prosecutors allege caused her newborn to die hours after birth. It was the first time the federal courts had ever greenlit such a prosecution, and it came at a time when the Trump administration announced it would be restarting federal executions.

Trump is on track to have more judges confirmed in 2019 than in 2017 and 2018 combined. Those appointments have successfully flipped the Third Circuit Court of Appeals from a Democratic-appointed majority to a Republican one. It is all but certain that the Second Circuit and Eleventh Circuit courts will also flip to Republican-appointed majorities by the end of the year.

And, remember those extreme abortion bans passed in Alabama, Kentucky, and Ohio? Legal challenges to those laws will eventually be heard by the freshly Trumpified Sixth and Eleventh Circuits.

“This is really fantastic,” Trump said Wednesday of the combined efforts to control the federal courts. He then punctuated the sentiment by releasing the names of seven new appointees that the Senate will consider later this year.

Republicans in Congress couldn’t be giddier. “You had been helped enormously by a decision that I made—and these guys will back me up—not to let President Obama fill that Scalia vacancy on the way out the door,” Senate Majority Leader Mitch McConnell (R-KY) told President Trump to a room full of supporters and press during a Republican victory lap on the courts Wednesday, according to the New York Times.

McConnell is actually being humble here. Trump has benefitted from a lot more than McConnell’s refusal to hold hearings on a U.S. Supreme Court nominee in 2016, which was a violation of every political norm at the time. Trump is reaping the rewards of a decade of Republican obstructionism of Democratic nominees—led by McConnell, but with a heavy assist from Sen. Chuck Grassley (R-IA). Republicans refused to move on nearly all of President Obama’s judicial nominees, thereby creating an artificial vacancy crisis in the courts that Republicans jumped to fill the minute they won the White House.

What’s worse (if it can get any worse), is that Republicans have shown they don’t care about the integrity of the federal courts. They care about a consolidation of power. Take, for example, the fact that no president has nominated more judges deemed “unqualified” by the nonpartisan American Bar Association (ABA) than Trump. The Republican response? To attack the ABA for alleged bias.

Republicans have backed Trump appointees in almost lock-step in order to secure their control of the federal courts. So even when the administration nominates someone like Steven Menashi, who has flirted with ethnonationalism in his writings and was instrumental in shaping an illegal loan forgiveness program advanced by Secretary of Education Betsy DeVos, Republicans failed to stand for ethics over party by refusing to advance the nomination. Or when the president nominates a man credibly accused of sexual harassment and assault to the Supreme Court and protesters show up in the thousands demanding a different nominee, the most Republicans offered was a collective shrug while they voted to confirm Brett Kavanaugh to the Court.

What can we do now, exactly?

Democrats face a stark choice when it comes to the federal courts: Put forward and aggressively pursue court reform for 2020 and beyond, or try and craft policy in the aftermath of the flood of conservative legal thinking these appointments will produce. Some advocates have suggested turning to state courts as a means to protect and enforce civil rights now that Republicans all but own the federal courts. Not surprisingly, conservatives have their sights set on capturing state courts too.

Frankly, I don’t have any good answers to the problem we face with the federal courts, and when Democratic presidential candidates insist on advancing hagiography around partisans like retired Supreme Court Justice Anthony Kennedy, I don’t have a ton of hope. It seems unlikely that, should Democrats win in 2020, they’ll advance ideas bold enough to fix some of this mess.

But giving up isn’t an option, not when men like Menashi, who is only 40, are about to be elevated to a lifetime appointment, and when Republicans have announced they will not rest until they’ve filled every open seat on the bench. I also know that giving up isn’t an option with so many rights on the line.

Democrats slept on the courts as an electoral issue in 2016. They can’t afford to do so again in 2020.

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