In his recent State of the Union address, Donald Trump boasted that Republicans are “appointing judges who will interpret the Constitution as written, including a great new Supreme Court Justice, and more circuit court judges than any new administration in the history of our country.”
Unlike so many of the president’s claims, this one was largely true. Now that filibusters are no longer an option on judicial nominees, the Republican-led Senate is confirming the Republican-led White House’s court picks at a stunning clip – including 13 appellate court judges in Trump’s first year.
Soon after, Trump spoke at a GOP congressional retreat and kept his focus on the judiciary:
“And one of the things we’re doing that’s so important – and Mitch has worked so hard on, and Don, and everybody – is the justices, the judges all over the country. We’re filling up the courts with really talented people who understand and read the Constitution for what it says.
“So it’s really not talked about that much, but it is a tremendous impact. It’s having already a tremendous impact. And we have incredible people lined up – just lined up – that are getting ready to go into the courts. And, in many ways, Mitch, I think it’s going to be one of the most important things, if not the most important thing, that we’re doing…. What we’re doing with the courts, I think, is going to go down as one of the greatest achievements.”
Trump’s excitement is understandable at a certain level. Republicans have struggled in a wide variety of ways since the president took office, but when it comes to filling the federal courts with far-right nominees – who serve lifetime appointments – Democrats have been effectively powerless to stop the GOP’s efforts.
But it’s worth taking a moment to understand who, exactly, will end up benefiting from this “achievement.”
For example, take Howard Nielson, nominated to be a United State District Court judge in Utah, whom Republicans on the Senate Judiciary Committee voted yesterday to advance. Mother Jones explained the other day that Nielson’s work on Bush/Cheney “torture memos” has been a key point of contention.
Nielson worked for the Justice Department’s Office of Legal Counsel from 2003 to 2005 under Stephen Bradbury, one of the authors of a series of memos that helped provide legal underpinning for the CIA’s Bush-era interrogation programs. The exact nature of Neilson’s involvement in those memos was unclear at the time of his nomination, but in response to questions from the Senate Judiciary Committee, Nielson acknowledged he had been gave input on “enhanced interrogation techniques,” but explained that final decisions had been left to senior officials.
Nielson was more directly involved in at least one similar document: In 2005, while serving in the OLC, Nielson wrote a memo arguing that the Geneva Convention ought not apply to anyone detained by US forces in Afghanistan. Beth Van Schaack, former war crimes expert at the U.S. Department of State who has written extensively about Nielson’s memo, argues that “if Nielson’s theory of the treaty were to prevail, United States personnel could torture civilians – so long as they did so outside the United States – without breaching the treaty.”
Nielson is also the same lawyer who, in 2011, argued that a gay judge in California could not be impartial in a case on the constitutionality of marriage equality.
Senate Republicans are ready to see him on the federal bench anyway.
There are many more just like him. As Slate’s Dahlia Lithwick recently explained, The president’s slate of nominees is, thus far, roughly 91 percent white and 81 percent male…. Most of Trump’s nominees are consistently some mix of anti-choice, anti-gay rights, anti-minority, and pro-business. Their average age skews younger than we have previously seen. Many are younger than 50 and may serve for decades.”
Which brings us back to Trump’s boast: “What we’re doing with the courts, I think, is going to go down as one of the greatest achievements.” Perhaps, but a great achievement for whom?