As we brace for the next revelation to contribute to Trump's "downward spiral," as Sen. Bob Corker (R-Tenn) put it, let's not lose sight of the unmitigated and long-lasting damage the malevolent orange shit-gibbon can still wreak -- particularly with regard to the federal judiciary. Remember, the Republicans didn't only steal a Supreme Court seat when they refused to even hold hearings on Obama's nominee for the high court. They also mucked up the process for Obama's nominees to the lower federal courts. As a result, only twenty district court and appellate court judges were confirmed in the last two years of Obama's presidency (compared to three times that many for each of his three immediate predecessors).
This means that Trump has the opportunity to fill over 120 vacancies on the federal bench and, in doing so, drastically reshape the courts with radical right wing judges who will roll back rights, strike down regulations and protect corporate wealth.
While there has justifiably been great attention focused on how the balance of power on the Supreme Court could drastically shift if there are further vacancies during Trump's time in office, the reality is that the lower federal courts -- both the courts of appeal and the district courts -- have enormous influence on the application and scope of federal laws and constitutional rights. After all, the Supreme Court grants review in less than 2% of the roughly 7,000 certiorari petitions that are filed every year, leaving in place the vast majority of lower federal court rulings for which review is denied.
Trump has already nominated the first ten federal judges of the 120, and they are not a promising group. Many are Scalia acolytes (like Trump's new Supreme Court justice) who believe in an originalist interpretation of the Constitution -- a flawed, result-oriented judicial philosophy that is well outside the mainstream of legal thought. The consequences for civil rights, voting rights and LGBT rights, for women's reproductive health and health care reform, for enforcement of environmental and Wall Street regulations, for consumers and unions, for gun control and campaign finance reform, and for criminal justice and social justice could not be more bleak.
But beyond judicial philosophy, the more basic issue is whether a president whose very legitimacy has been called into serious question -- whose administration is under investigation for its connections to a foreign power that interfered with the election, for abusing the power of the office and for obstructing justice -- should be able to make lifetime appointments that will influence our legal rights and remedies for generations.
Even without the filibuster, which is no longer a permissible tool for blocking nominees, there are steps Democrats can take to slow -- if not, shut -- things down while these questions remain unresolved. Indeed, the Judiciary Committee (which has already approved a judge for the Sixth Circuit), should have its hands full investigating Russia-gate, even after being stood up by former FBI Director Comey this week. In addition, states with Democratic Senators can still withhold the "blue slip," a tradition that allows home-state senators to block nominees -- and one that Republicans used to stymy 17 Obama nominees. (Republicans, however, are -- what a surprise -- threatening to do away with the blue slip for appellate court nominees.)
But, more broadly, Democrats must insist -- with regard to all Senate matters but especially for judicial nominees -- that Trump's agenda must yield to an independent commission empowered to investigate allegations of obstruction of justice and abuse of power, and until that happens, Congress will not return to business as usual. That means using every technicality and procedural rule from objecting to unanimous consent requests to forcing roll call votes on every matter. And it means using every opportunity to speak on the Senate floor to keep Trump's incompetence, instability and corruption at the forefront of our political discourse. And it means using the Senate rules that encourage free and open debate to force Republicans to answer for their unwillingness to accept Trump's incompetence, instability and corruption.
Trump has yet to fill an unprecedented amount of vacancies throughout his administration, many of which require Senate confirmation. The tenure of such appointees, however, is generally only as long as the president remains in power, and so the damage they could do, while very real, is at least somewhat circumscribed. (The FBI's 10-year term is a notable exception.) If Trump is removed from office, those political appointees can be removed too. Not so with federal judges, who are appointed for life. As the drip, drip, drip of scandals continue -- while there remains a cancer on the presidency -- there should be no lifetime appointments.
This means that Trump has the opportunity to fill over 120 vacancies on the federal bench and, in doing so, drastically reshape the courts with radical right wing judges who will roll back rights, strike down regulations and protect corporate wealth.
While there has justifiably been great attention focused on how the balance of power on the Supreme Court could drastically shift if there are further vacancies during Trump's time in office, the reality is that the lower federal courts -- both the courts of appeal and the district courts -- have enormous influence on the application and scope of federal laws and constitutional rights. After all, the Supreme Court grants review in less than 2% of the roughly 7,000 certiorari petitions that are filed every year, leaving in place the vast majority of lower federal court rulings for which review is denied.
Trump has already nominated the first ten federal judges of the 120, and they are not a promising group. Many are Scalia acolytes (like Trump's new Supreme Court justice) who believe in an originalist interpretation of the Constitution -- a flawed, result-oriented judicial philosophy that is well outside the mainstream of legal thought. The consequences for civil rights, voting rights and LGBT rights, for women's reproductive health and health care reform, for enforcement of environmental and Wall Street regulations, for consumers and unions, for gun control and campaign finance reform, and for criminal justice and social justice could not be more bleak.
But beyond judicial philosophy, the more basic issue is whether a president whose very legitimacy has been called into serious question -- whose administration is under investigation for its connections to a foreign power that interfered with the election, for abusing the power of the office and for obstructing justice -- should be able to make lifetime appointments that will influence our legal rights and remedies for generations.
Even without the filibuster, which is no longer a permissible tool for blocking nominees, there are steps Democrats can take to slow -- if not, shut -- things down while these questions remain unresolved. Indeed, the Judiciary Committee (which has already approved a judge for the Sixth Circuit), should have its hands full investigating Russia-gate, even after being stood up by former FBI Director Comey this week. In addition, states with Democratic Senators can still withhold the "blue slip," a tradition that allows home-state senators to block nominees -- and one that Republicans used to stymy 17 Obama nominees. (Republicans, however, are -- what a surprise -- threatening to do away with the blue slip for appellate court nominees.)
But, more broadly, Democrats must insist -- with regard to all Senate matters but especially for judicial nominees -- that Trump's agenda must yield to an independent commission empowered to investigate allegations of obstruction of justice and abuse of power, and until that happens, Congress will not return to business as usual. That means using every technicality and procedural rule from objecting to unanimous consent requests to forcing roll call votes on every matter. And it means using every opportunity to speak on the Senate floor to keep Trump's incompetence, instability and corruption at the forefront of our political discourse. And it means using the Senate rules that encourage free and open debate to force Republicans to answer for their unwillingness to accept Trump's incompetence, instability and corruption.
Trump has yet to fill an unprecedented amount of vacancies throughout his administration, many of which require Senate confirmation. The tenure of such appointees, however, is generally only as long as the president remains in power, and so the damage they could do, while very real, is at least somewhat circumscribed. (The FBI's 10-year term is a notable exception.) If Trump is removed from office, those political appointees can be removed too. Not so with federal judges, who are appointed for life. As the drip, drip, drip of scandals continue -- while there remains a cancer on the presidency -- there should be no lifetime appointments.
