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Commentary Law and Policy

Senate Republicans Must Stop Confirming the Judicial Nominees of an Impeached President (Updated)

Jessica Mason Pieklo

Progressive organizations are pressuring Republican leaders to pause judicial nominations, while signs suggest Republicans intend to double down on stacking the judiciary with Trump judges.

UPDATE, January 17, 2020, 11:03 a.m.: U.S. Sen. Lindsey Graham (R-SC) said Thursday that the Senate Judiciary Committee would not meet until after President Trump’s impeachment trial, Bloomberg Law reports. Sen. Kamala Harris (D-CA) had called for the committee to stop confirming judicial nominees during the trial. 

Now that President Trump has been impeached, it’s time to halt confirmations of his judicial nominees.

That was the message of a letter sent Tuesday by a coalition of 29 advocacy organizations to U.S. Senate Majority Leader Mitch McConnell (R-KY) and Senate Judiciary Chair Lindsey Graham (R-SC), who have filled the courts with Trump-appointed judges who could uphold some of the country’s most extreme abortion restrictions.

“The Articles of Impeachment recently approved by the House of Representatives state that the president of the United States has abused the powers of his office by soliciting a foreign government to interfere with the 2020 elections and has obstructed Congress’ efforts to investigate the matter,” the letter says. “While any president is under the cloud of impeachment for such high crimes and misdemeanors, the Senate and the Judiciary Committee must put a hold on processing that president’s nominees for lifetime positions in the federal judiciary.”

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Organizations signing onto the letter include the National Women’s Law Center, the Leadership Conference on Civil and Human Rights, People for the American Way, the NAACP, and the NAACP Legal Defense and Educational Fund.

“It is ludicrous, and frankly offensive, to suggest that a president who has been impeached because of his contempt for our elections and for the rule of law should continue to have his nominations to the federal bench move ahead as if all were well,” said Marge Baker, executive vice president for policy and program at People for the American Way, in a statement. “Senators McConnell and Graham need to show that they grasp this central fact.”

The letter forcefully makes the case for pausing all judicial nominations until the Senate impeachment trial comes to a conclusion. But the only “central fact” Republicans seem to grasp is that they are a few steps away from controlling the federal courts for a lifetime.

One in four federal appeals court judges is now a Trump appointee, endangering abortion rights for years to come. There are few open appellate court seats left to fill. And Republicans are not going to pass on the chance to fill the remaining open seats in the lower courts. That would explain why, according to reports by Axios on Tuesday, Leonard Leo is stepping back from his day-to-day duties running conservative legal advocacy group the Federalist Society to launch a dark money group whose first initiative will be a $10 million pressure campaign focusing on judges in the 2020 election cycle.

It’s thanks in large part to Leo’s work as a fundraiser and conservative advocate at the Federalist Society that Republicans have been so successful in packing the federal courts with young, mostly white male ideologues. With news that Leo will be joining forces with Greg Mueller, the conservative activist who helped organize one of the more bizarre defenses of Supreme Court Justice Brett Kavanaugh, there’s every reason to think Republicans will double down on judicial appointments heading into the 2020 presidential election.

Aaron Belkin, director of a progressive group called Take Back The Court, said those who oppose Republicans’ takeover of the nation’s courts should be alarmed by Leo starting a dark money organization.

“News that the head of the Federalist Society is launching a multi-million dollar ad campaign focused on judges should be a wakeup call for anyone who cares about progressive causes or the rule of law,” Belkin said in a statement. “This is a reminder that the Federalist Society, Mitch McConnell, and Donald Trump have already deeply politicized the federal judiciary, all the way up to packing the Supreme Court with illegitimate right-wing jurists. Some of my fellow progressives hope that if we stay quiet and don’t talk about the courts, the right will drop their crusade to fill the federal bench with partisan, activist judges. As if we needed any more evidence, today’s news proves that the fight is happening whether we participate or not. It’s time to stop worrying and start fighting back.”

I expect McConnell and Graham to ignore the coalition letter and continue full speed ahead with confirming Trump’s judicial nominees. And I expect Leo and Mueller to pump out dark money ad after dark money ad in support of those nominees leading up to the November election. That means progressives are going to have to look to Democrats to fix the courts. Republicans have no incentive to stop stacking the courts, even with Trump impeached.

If such an incentive existed, if the rule of law mattered more to Republicans than holding fast to political power, a letter like this would not be necessary. We can imagine a world where McConnell and Graham call for a pause to nomination proceedings pending the conclusion of an impeachment trial. We can even imagine a world where Trump’s nominees ask for that pause themselves so as to not have their appointment tainted by a corruption trial. But that’s not the world we live in. As we saw with the Kavanaugh nomination, when faced with a threat to power and calls for accountability, Republicans double down. Leo’s new venture, launched just as Trump is impeached and as Democrats are gaining electoral momentum, proves this will continue to be the Republican playbook.

It won’t be enough to win elections if the federal courts are packed with ideologues committed to killing any progressive reform before it takes root. If the past decade has taught us anything about conservatives and the federal courts, it is that they understand the judiciary to be their firewall in retaining political power in the face of demographic change and they will do anything they can to hold on to the federal courts.

Democrats need to come to grips with this political reality and come up with a plan to face it head on. They have to be prepared for a bruising battle to implement it. A failure to do so will not just thwart their political agenda. It will insulate and advance conservative power for decades to come.

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