The Senate’s Big Week on Judges: What You Need to Know
by Kyle Barry, LDF Policy Counsel
President Trump’s judicial nominees are front and center in the Senate this week, as Majority Leader Mitch McConnell and the Republican majority — unable to advance their conservative agenda with legislation — move to reshape the judiciary with far-right and highly partisan judges. The Senate is scheduled to confirm five judges this week, including four to the circuit courts of appeals. Tomorrow, the Judiciary Committee will also hold a confirmation hearing for an additional four nominees — including one to the Eighth Circuit, Steve Grasz, to whom the American Bar Association (ABA) gave the rare rating of unanimously “not qualified.”
If all goes according to McConnell’s plan, by week’s end the Senate will have confirmed 13 Trump judges, including a Supreme Court Justice and eight judges to the courts of appeals. At this same point in his presidency, President Obama had appointed just one court of appeals judge, and his eighth appointment to the circuit courts didn’t come for another six months — placing Trump well ahead of pace and debunking the absurd Republican talking point that Senate Democrats are “obstructing” judges.
The nominees before the Senate this week demonstrate a breathtaking hostility toward civil rights and equal justice, and their records are rife with animus toward minority communities — especially LGBTQ people — who depend most on the courts to vindicate and protect their rights. These nominees’ collective records reveal the disturbing truth that this Administration does not just tolerate radical anti-equality views among its judicial nominees, but requires them.
Here’s what you need to know about each nominee:
Amy Coney Barrett (Seventh Circuit) & Joan Larsen (Sixth Circuit)
The Senate confirmed Amy Coney Barrett to the Seventh Circuit this afternoon with a 55–43 vote, and then moved into debate on Joan Larsen, a Michigan State Supreme Court Justice nominated to the Sixth Circuit. The two have much in common. Both clerked for Justice Antonin Scalia — Larsen called him “a great judge for the people of the United States” — and both evince an extreme bias against reproductive rights and LGBTQ equality.
Barrett wrote in a law review article that abortion “is always immoral” and used anti-abortion rhetoric to describe Roe v. Wade, saying the decision “essentially permitted abortion on demand” and “recognizes no state interest in the life of a fetus.” Barrett added that “Republicans are heavily invested in getting judges who will overturn Roe” — an observation that explains her own confirmation.
Barrett also criticized the Obama Administration’s efforts to accommodate religious organizations that object to the Affordable Care Act’s contraception mandate, which ensures that women have access to contraception as part of their employer-provided health insurance at no additional cost. When the Administration allowed religious organizations to opt-out of the mandate by simply signing a form, Barrett signed a letter that called the accommodation an “accounting trick” that poses a “grave infringement on religious liberty.” In another letter, Barrett expressed her personal opposition to marriage equality. The letter stated that “a sure guide to the Christian life” includes recognizing “the significance of sexual difference and the complementarity of men and women” and “marriage and family founded on the indissoluble commitment of a man and a woman[.]”
Justice Larsen revealed her anti-LGBTQ views when she refused to give full effect to the Supreme Court’s decision, Obergefell v. Hodges, that recognized a constitutional right to marriage equality. In Mabry v. Mabry, a case before the Michigan Supreme Court, she joined four other Republican-appointed justices in declining to review a case about whether a lesbian parent could obtain parental rights. According to the dissent, refusing to grant review “illustrates and perpetuates the troubling effect of this state’s unconstitutional ban on same-sex marriage and second-parent adoption identified by the Supreme Court in Obergefell.”
In 2000, Larsen wrote that the fundamental “divide in contemporary constitutional law [is] between liberals’ impulse to constitutionalize — and therefore ‘judicialize’ — every important question and conservatives’ impulse to leave every question to ordinary politics.” Larsen made no mention of conservative efforts to “judicialize” issues by bringing legal challenges to affirmative action, the Voting Rights Act, gun control regulations, campaign finance laws, and regulations that protect consumers and the environment.
Allison Eid (Tenth Circuit)
A former law clerk to Clarence Thomas and current Justice on the Colorado Supreme Court, Justice Eid was on Trump’s original list of 11 potential Supreme Court nominees that he released during the campaign.
On the state supreme court, Eid has issued several troubling dissents in cases involving police misconduct. One case involved evidence obtained from a criminal defendant who was severely beaten by two police officers. After the beating, which caused multiple bone fractures to his face, the defendant confessed to possessing drugs. He made additional incriminating statements after he received six hours of medical treatment for his injuries, and was interrogated by the same officers who beat him. Eid concurred with the majority opinion that suppressed the defendant’s statements, but dissented to say that the drugs found in his possession — which were discovered only because of his coerced confession — should be allowed into evidence.
Similarly, in People v. Ramadon, the Colorado Supreme Court ordered the suppression of statements made by a native of Iraq who the United States military brought to this country for his protection as a teenager. The police officer told him that if he didn’t tell the truth he would be deported to Iraq, where he believed he would be beaten or killed. Eid dissented to argue that this threat was not coercive.
Stephanos Bibas (Third Circuit)
Currently a law professor at the University of Pennsylvania, Stephanos Bibas also spent two years as a federal prosecutor. During that time, he brought charges against a cashier at a veterans’ hospital cafeteria for allegedly stealing seven dollars. The overzealous prosecution resulted in acquittal, and Bibas faced scrutiny for waiting until the day of trial to turn over evidence that confirmed the defendant’s account. It is perhaps unsurprising, then, that Bibas later called the Supreme Court’s seminal decision in Miranda v. Arizona “one of the Warren Court’s great mistakes.”
In 2015, Bibas wrote in The National Review that structural racism and the racist “war on drugs” have not contributed to mass incarceration. Ignoring data on racial disparities and the impact of mandatory minimum sentences for low-level drug crimes, Bibas argued that “prison growth has been driven mainly by violent and property crime, not drugs.” Bibas also dismissed the role that race and poverty play in criminal prosecutions, writing that “poverty and racism are no excuses for choosing to break the law.” In that same article, Bibas wrote that “the Left paints drug addiction as a disease requiring costly medical intervention, drug addicts can in fact choose to stop using drugs.”
Steve Grasz (Eighth Circuit)
Steve Grasz, nominated to the Eighth Circuit, will appear before the Senate Judiciary Committee for a confirmation hearing tomorrow morning.
This week the ABA, which conducts a nonpartisan, merit-based review of all judicial nominees, gave Grasz the rare rating of unanimously “not qualified.” Grasz is just the third judicial nominee since 1989 to receive that distinction, and the other two were not confirmed. According to the ABA, Grasz cannot “detach himself from his deeply-held social agenda and political loyalty to be able to judge objectively, with compassion and without bias.” Specifically, the ABA raised concerns that Grasz will not respect precedents that conflict with his personal anti-abortion views and belief that Roe v. Wade is “questionable jurisprudence.”
In addition to opposing abortion access, Grasz is an ardent opponent of LGBTQ equality and a supporter of capital punishment.
Since August 2015, Grasz has served on the Board of the Nebraska Family Alliance, an anti-abortion and anti-LGBTQ organization that supports the cruel and discredited practice of “conversion therapy.” While Grasz was on the board, the Family Alliance opposed legislation to “prohibit discrimination based upon sexual orientation and gender identity” in the workplace. In 2013, Grasz proposed an amendment to the Omaha City Charter that would have allowed employers to discriminate against LGBTQ people in hiring. Consistent with this animus, Grasz also wrote that marriage equality poses a “grave danger.”
From 2015 to 2017, Grasz successfully worked to reinstate the death penalty in Nebraska. In 2015, the Nebraska Legislature abolished the death penalty, overriding a veto by Governor Pete Ricketts. In response, a group called Nebraskans for the Death Penalty organized a referendum petition to reinstate the capital punishment laws. Grasz served as the group’s Assistant Secretary.
Mark Norris (Western District of Tennessee)
Mark Norris is the Majority Leader of the Tennessee State Senate, and Trump’s nominee to serve as a district court judge in the Western District of Tennessee. He will also appear before the Judiciary Committee tomorrow morning.
As a lawyer and politician, Norris has developed a remarkably comprehensive anti-civil rights record. He has worked tirelessly to oppose civil rights and to support segregation and discrimination at every turn. He has equated Muslim refugees with ISIS terrorists and vigorously opposed LGBTQ equality. He has made it harder for African-American children to receive a quality education, and for African-Americans, the elderly, and students to exercise their right to vote. He has undermined legal protections for workers, and has protected corporations from liability when they violate the law.
The full details of his record are set forth in an Alliance for Justice report, but a few examples are noted here:
Norris has supported a variety of anti-LGBTQ legislation, including a bill that prohibits cities from protecting gay and lesbian people from discrimination based on sexual orientation, and another that allows mental health counselors to discriminate against LGBTQ clients. The American Counseling Association dubbed the latter “Hate Bill 1840.”
With respect to voting rights, Norris supported Tennessee’s discriminatory voter ID law, which took effect in 2012. Norris advocated for an additional discriminatory provision that would have required proof of citizenship and afforded election officials with the discretion to demand proof from certain voters — a policy that would have certainly led to racial profiling and discouraged people from voting.
Finally, Norris championed a bill that allowed six wealthy suburban schools to secede from the Shelby County, Tennessee school system. The law was a transparent effort to prevent the Memphis City Schools from integrating. One former Tennessee Speaker of the House said, “the only thing [Norris was] doing with that bill was segregation . . . this is to allow those four or five towns in Shelby County to be able to form their white school districts.” The exodus of suburban schools, enabled by Norris, has perpetuated school segregation in Shelby County and has had a devastating financial impact on students in Memphis, most of whom are children of color.