One Year of Trump’s Judges Will Harm the Justice System for a Generation

The courts can’t protect us if we don’t protect the courts — and the civil rights community is fighting to save them.

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One year ago today, President Trump made his first lower court nomination — a Kentucky district court judge, Amul Thapar, who was nominated to the U.S. Court of Appeals for the Sixth Circuit. Why did this vacancy exist in the first place? Because of Senate Majority Leader Mitch McConnell.

In March 2016, President Obama nominated Kentucky Supreme Court Justice Lisabeth T. Hughes to the Sixth Circuit. The nonpartisan American Bar Association gave Hughes their highest rating — unanimous Well Qualified — and she would have made history by becoming the first woman from Kentucky to serve on that court. But because Senator McConnell didn’t return his blue slip on Hughes’ nomination, she never received a hearing or vote in committee — and languished for nearly a year before the 114th session of Congress ended in January 2017.

Trump’s nomination of Judge Thapar launched a year of judicial nominees who have become known for their lack of qualifications, their lack of diversity, and their troubling, anti-civil rights records — records that have drawn fierce opposition from the civil and human rights community.

As our community has long recognized, the composition of the federal judiciary is a civil and human rights issue of profound importance because federal judges are charged with upholding our constitutional and civil rights — and that has a direct impact on us all. Independent and fair courts are also an important check on the power of the other two co-equal branches of the federal government, as federal judges have continually demonstrated since Trump took office.

Fair-minded judges have served as an appropriate check when the Trump administration issued several versions of its Muslim ban, when it attempted to ban transgender people from serving in the military, when it ended the DACA program, and on several other occasions. But instead of changing his discriminatory policies, Trump has attempted to remake the courts in his own image — in many cases by nominating unqualified individuals whose records show a clear contempt for civil rights. And his nominees have been the least diverse in decades.

To date, more than 90 percent of Trump’s judicial nominees have been White, and more than three quarters have been men. According to new research, this matters and has profound, indelible consequences. “Diversifying the federal bench expands the types of judges widely cited by similar colleagues, broadening the range of voices that influence legal development,” the authors of that research wrote last week in The Washington Post. “Trump’s nomination of mainly white and male judges affects not only the outcomes of particular cases, but also the development of the legal rules we live by.”

Many of Trump’s nominees have also been unqualified, both in terms of inexperience and in terms of their records of bias. Four of his nominees have received the rare rating of Not Qualified from the American Bar Association — two of them unanimously. And his nominees don’t just lack the necessary legal experience or work ethic. Many also lack the essential qualities of fairness and impartiality, even if they attained a passing rating from the ABA based on having minimally sufficient experience.

Thomas Farr, for example, who’s been nominated to a district court in North Carolina, has devoted his legal career to suppressing voting rights and defending companies and individuals accused of employment discrimination and sexual harassment. Stuart Kyle Duncan, one of Trump’s nominees to the Fifth Circuit, is a right-wing ideologue who has described the Supreme Court’s decision ensuring marriage equality as “an abject failure” that “imperils civil peace.” Michael Brennan, nominated to the Seventh Circuit, has a far-right judicial philosophy that includes a disrespect for the bedrock principle of stare decisis, and he refused to acknowledge at his confirmation hearing whether implicit racial bias exists in our nation’s criminal justice system.

Brennan received a hearing, and is currently pending for a vote on the Senate floor, even though one of his home-state senators — Democrat Tammy Baldwin of Wisconsin — opposes his nomination and objected to his nomination proceeding in the Senate. Now that a Republican occupies the White House, Senate Judiciary Committee Chairman Chuck Grassley has reversed his own adherence to the century-old practice of only scheduling hearings for judicial nominees who have the support of both home-state senators. Indeed, if he were following the practice he required under the previous administration, Brennan wouldn’t have moved or even received a committee hearing, let alone a committee vote.

But disregarding home-state senator objections is just the tip of the iceberg when it comes to Chairman Grassley’s abuse of the judicial confirmation process. He’s stacked multiple circuit court nominees in one hearing over the objections of Democrats, has discounted the importance of testimony from the American Bar Association, and has tolerated incomplete answers from nominees on their Senate questionnaires. His troubling conduct as chairman will impact our democracy for generations to come.

And so will Trump’s extreme judges. Due to Grassley’s rushed process, this administration set a record in 2017 for the most circuit court judges confirmed in a president’s first year, when the Senate confirmed Trump’s twelfth appeals court judge in December. Our organization, the nation’s oldest and largest civil rights coalition, opposed seven of them — and had serious concerns about three others. To date, the Senate has confirmed 14 of Trump’s circuit court nominees and 14 district court nominees, in addition to Neil Gorsuch to the U.S. Supreme Court.

But several nominees have also been forced to withdraw. At the end of 2017, significant press coverage, viral videos, and considerable advocacy from the civil rights community ended the district court nominations of Jeffrey Mateer, Brett Talley, and Matthew Petersen — three unqualified nominees. The White House has also not yet renominated two extreme and unqualified U.S. Court of Federal Claims nominees — Damien Schiff and Stephen Schwartz.

The fight for fair courts requires senators to put the interests of our democracy over the interests of any political party. The threat that biased, unqualified judges pose will damage the confidence the American people have in our independent judiciary for decades.

The civil and human rights community will continue to speak out against unqualified, ideologically extreme nominees, and we urge senators on both sides of the aisle to step up their efforts to scrutinize and reject unqualified and radical individuals. Our third branch of government, the judiciary, will be critical to protecting civil rights — but only if we protect it.

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