It’s generally assumed that the Republican-led Congress will not take up any major new legislative initiatives between now and the midterm elections in November, but GOP senators will still make time for Donald Trump’s far-right judicial nominees.
Yesterday’s developments in the upper chamber didn’t generate a lot of headlines, but that doesn’t mean they’re not important. Roll Call reported overnight:
Appeals court nominee Kyle Duncan has advocated on behalf of conservatives in legal fights over contentious cultural issues such as abortion and LGBT rights, leaving behind the kind of paper trail that might have dissuaded presidents from putting him through the Senate’s confirmation process.
Donald Trump is not such a president.
And changes to the Senate filibuster rules from five years ago meant Democrats alone didn’t have the votes to block Duncan from a seat on the U.S. Court of Appeals for the 5th Circuit based in New Orleans.
Quite right. Ordinarily, Kyle Duncan is the kind of far-right lawyer whom a president would hesitate to even nominate to the federal bench. Much of his career has been built on fighting against reproductive rights, LGBTQ rights, voting rights, and the rights of immigrants.
But Trump nominated Duncan anyway and every Senate Republican – including the ostensible “moderates” – voted to confirm him to the appellate bench, where the 46-year-old conservative will likely spend the next several decades making those who share his ideology happy.
And he won’t be alone. Duncan was the 15th appellate-court judge GOP senators have confirmed to the bench since Trump took office – and 33rd confirmed judicial nominee overall – which reflects a concerted partisan effort to move the courts sharply and quickly to the right – an effort that’s quietly succeeding.
What’s more, Senate Majority Leader Mitch McConnell (R-Ky.) and his partners are likely to keep their foot on the gas: faced with the possibility of a Democratic wave, Republican leaders intend to keep the focus on confirming more far-right judicial nominees, in case the GOP loses its majority.
For much of the country, that’s not good news. Slate’s Mark Joseph Stern had a striking piece yesterday on what we’re already seeing from some of Trump’s judges, including the 5th Circuit’s James Ho, who recently sided against a local limit on campaign contributions. In his dissent, Ho wrote that while “many Americans of good faith bemoan the amount of money spent on campaign contributions and political speech,” he believes “if you don’t like big money in politics, then you should oppose big government in our lives.”
This wasn’t an op-ed from a conservative pundit; it was a judicial ruling from a federal appellate bench. From the Slate piece:
Ho’s conception of campaign finance is transactional: He believes rich people may need to buy elections to protect themselves from regulations promulgated through the people’s representatives. While the Supreme Court describes campaign contributions as “participation in the democratic process,” Ho sees them as fundamentally anti-democratic—a tool the wealthy can deploy to buy off regulators. And if you don’t like sky-high political spending, Ho suggests, you should support deregulation, so powerful people and corporations don’t have to go through the trouble of purchasing elections in the first place.
This reasoning is drawn not from Supreme Court precedent or the Constitution, but rather Ho’s own views about the evil of regulations. When Ho does cite precedent, he uses it capriciously. To bolster his claim about the modern government being “unrecognizable to our Founders,” he cited the first Obamacare case, in which Chief Justice John Roberts voted to uphold the law. Ho seemed to ding Roberts for this move – a strange and irrelevant point to shoehorn into his ruling.
Note, Ho is only 45 years old. Mark Joseph Stern added, “[O]ther Trump judicial nominees are in their 30s. These men and women (but mostly men) will be subjecting us to gratuitous screeds for much of the rest of our lives.”
I’m sympathetic to the argument that Trump and his allied Congress have fallen far short of many of their legislative goals, but they also set out to change the face of American courts, and on this score, Republicans are winning.
The president recently bragged that he and his party are “filling up the courts” with conservatives. He added, “I think it’s going to be one of the most important things, if not the most important thing, that we’re doing.”
It was a rare instance in which Trump was largely correct.