Leaving no judicial vacancy behind

During the week of May 3, US Senators were ordered back to Washington to resume Senate business. Most of the country was shut down, but Senate Majority leader Mitch McConnell insisted that Senators return to Washington. Why? Did he want to address the continuing health crisis or massive unemployment? No, Senator McConnell wanted a vote on an Appeals Court judgeship for the District of Columbia for 37-year-old Justin Walker. Mr. Walker was a former McConnell protege who has been judged “unqualified” by the American Bar Association. But never mind – he will most likely be confirmed.

For all the flamboyance and bluster of the Trump Presidency, there has been a quiet revolution taking place that will last long after President Trump leaves office. President Trump has appointed an unprecedented number of judges. These are lifetime appointments. As such they will have a long lasting impact on the day to day lives of Americans in areas such as healthcare, voting rights, democratic practices, and climate.

We are all familiar with the ruthless engineering employed by Senator McConnell to gain two Supreme Court appointments. Judge Merrick Garland was denied a Senate hearing for a possible appointment at the end of the Obama Presidency. Justice Neil Gorsuch was appointed in his stead. Brett Kavanaugh was also later appointed to the Supreme Court bench. Further, Senator McConnell has indicated that any Supreme Court vacancy will receive a Senate vote no matter when it occurs during President Trump’s tenure.

These Supreme Court appointments are critical. However, that Court hears between 100-150 cases per year. Federal Appeals Courts are also important. They hear thousands of cases per year, and it is in these courts where most final rulings happen. It is also in these Courts where President Trump and Senator McConnell have had real success.

In three and one half years President Trump has appointed 52 out of a total of 179 Appeals court judges. In contrast, President Bush appointed 62; President Obama appointed 55 – but both were over an eight year period. President Trump has easily eclipsed both of them. These appointed judges are predominantly pro business, anti-regulation, and ideologically driven. In this way President Trump is on target to reorient the federal bench. Just as an aside, 10 of these 52 Trump appointments were deemed “unqualified” by the American Bar Association.

We have already seen results of these appointments. Here are a few examples:

  1. Judicial attacks on the Affordable Care Act.

  2. Diversion of appropriated Pentagon funds to the border wall.

  3. Sidestepping a ruling on voting rights and partisan gerrymandering.

  4. Allowing a travel ban to move forward.

  5. Restricting public unions.

  6. Green-lighting restricted family planning regulations.

There are long term implications of these judicial appointments and why they matter. Almost all of President Trump’s judicial appointments are young, white, male, and ideologically committed conservatives. They can be expected to issue rulings for several decades. The Census Bureau predicts that the country will be more diverse by 2045 with a minority white population. This divergence of demographic orientation could spell trouble with the diverse country wanting to move in one direction and ideological courts ruling against it.

Increasingly, individuals are looking to the courts for policy direction and guidance. This is because the Legislative and Executive Branches have been mired in partisanship and gridlock. However, these judicial rulings may become more ideologically driven and more conservative when compared to the values of the country.

It may take five or more years until we see the full effects of these appointments. But even now formerly reliable progressive courts have issued rulings threatening access to reproductive healthcare, green-lighting attacks on voting rights, and the shedding of the social safety net. For President Trump and Senator McConnell this transformation of the courts has been a resounding success. For the country, not so much.

R. Tom Deloe is a resident of Cumberland Township.

GovernmentTom Deloe