President-elect Donald Trump,  walks with his wife Melania Trump, and Senate Majority Leader Mitch McConnell after a meeting at the U.S. Capitol Nov. 10, 2016 in Washington, DC. 
Photo by Mark Wilson/Getty

Despite its other failures, GOP poised to move courts to the right

Senate Majority Leader Mitch McConnell has never been the religious right’s favorite member of Congress, but when the Kentucky Republican recently spoke at the Faith and Freedom Coalition conference, he delivered some news the far-right audience was delighted to hear.

“The courts – of all the things that we should be able to accomplish with this president and this Senate – the courts have the longest reach into the future,” McConnell said. “We have a significant number of vacancies coming into this administration. The president knows this is a way to have an impact on our country far beyond his tenure in office.”

That wasn’t just an applause line; it had the benefit of being true. Many conservatives who recognized Trump’s profound flaws last year voted for him anyway because they wanted to move the judiciary to the far-right, and they knew a Republican White House and a Republican Senate could deliver, filling vacancies McConnell created by blocking Obama-era nominees.

Writing for The New Republic last week, David Dayen noted that the Trump White House has already sent 22 judicial nominations to the Senate, as compared to the four judicial nominations the Obama White House had made at this point in 2009. The piece added that against the backdrop of scandal and crises, this one area – judicial nominees – represented a “rare outburst of competency” for the Republican administration.

For far-right observers, this is great news. While much of the left grew complacent about the federal judiciary, conservatives made the courts a top priority, and Trump and GOP senators are doing precisely what the Republican Party’s base wanted them to do.

Making matters worse for the left, the GOP isn’t just moving forward with plans to reshape the judiciary – remember, filibusters on all court nominees have been eliminated – they’re embracing jurists who are ridiculous even by 2017 standards. Indeed, Slate’s Dahlia Lithwick had a striking piece the other day, explaining that the White House and Senate Republicans are advancing “polemicists and bomb-throwers, performance artist lawyers who have spent their intellectual lives staking out absurd and often abhorrent legal positions.”

In a 2007 post on his personal blog, [37-year-old Damien Schiff, a nominee for the U.S. Court of Federal Claims] wrote, “It would seem that Justice [Anthony] Kennedy is (and please excuse the language) a judicial prostitute, ‘selling’ his vote as it were to four other Justices in exchange for the high that comes from aggrandizement of power and influence, and the blandishments of the fawning media and legal academy.”

In 2009, Schiff railed against the anti-bullying program in a California school district: “I have not seen the proposed lesson, but … it seems to teach not only that bullying of homosexuals is wrong, but also that the homosexual lifestyle is … good, and that homosexual families are the moral equivalent of traditional heterosexual families.” Schiff then added: “Perhaps someone will respond: would you have objected to an anti-racism curriculum being taught in 1950s Arkansas? I guess my answer there would be a qualified yes, that I would have objected, not that I would approve of racism, but that, as a prudential matter, the best way to get people to drop their racist views would not be to force the teaching of their children.”

Referencing Schiff, Sen. Sheldon Whitehouse observed that “if President Obama had sent in a nominee who had called Justice Kennedy a ‘judicial prostitute,’ the other side of this dais would have its hair on fire.” Whitehouse didn’t even bother to question the lawyer/blogger, yielding his time with the observation that “this just isn’t normal.”

John Bush, a 6th Circuit nominee from Kentucky, is in some ways worse. ThinkProgress noted last week that the conservative jurist used his blogging platform to highlight, among other things, content from WorldNetDaily, a fringe conspiracy theory website.

Trump and congressional Republicans will be in a position to do an enormous amount of damage while in power, but in many areas, changes made now can be changed back in the future. Health care benefits can be restored; alliances can be rebuilt, etc.

The federal courts, however, are different because federal jurists serve lifetime appointments. In other words, we’ll be dealing with the consequences of Trump’s – and his party’s – eagerness to move the court sharply to the right for decades to come.

Federal Courts and Federal Judiciary

Despite its other failures, GOP poised to move courts to the right