Comprehensive Impacts of Trump’s Second Year: Judicial/Constitutional
This publication is meant to be a comprehensive assessment of the impacts of the Trump administration. There are many things that happened during the campaign that are not included. For this series covering the second year, impacts from about January 20, 2018, to January 31, 2019, are included. An introduction to this year’s series is here.
There are sure to be things missing, but I have done my best to record these impacts. The impacts are compiled under 20 different categories, or articles:
1. Cabinet and Other Appointments;
3. Women & Families;
4. LBGT;
5. Judicial/Constitutional;
6. Ethics;
7. Targeting free press/free speech/Privacy;
8. Health & Safety;
9. Consumer Protections;
10. Education;
11. Transportation/Infrastructure/Housing;
12. Immigration;
13. Social Contract;
14. Business/Economy;
15. Budget;
16. General Governance;
17. Character;
18. Military/Defense/Police;
19. World; and
20. Some good news. Because there is always some good news.
Since this series takes a long time to write, I will publish each section as I complete it. This article is on judicial and constitutional impacts. You can read the complete series on the first year of the administration here.
Judicial/Constitutional
Across the country, an independent judiciary has been under attack. At the state level, state legislatures in at least 18 states have considered or moved forward with legislation that weakens the court’s authority and independence or politicizes the court. At the federal level, Trump is remaking the entire third branch of government to be straight white men, the more misogynist and anti-LGBT, the better. As reporter Jennifer Bendery noted of the 87 people who Trump nominated to the federal bench as of October 2018, “They’re about as diverse as a casting call for ‘Mad Men.’” Professor David Faris went on to note how the American judiciary as a whole is in “serious trouble.”
The country is also facing a constitutional crisis under Trump. And according to Robert Reich,
“As long as he can get away with it, as long as Republicans who control Congress won’t stand up to him, as long as Americans who oppose this have no capacity to stop him, even though they may be in the majority, this rogue president will do more and more damage to our system of government. And the constitutional crisis will worsen.“
· In a blatant attack on the constitution, Trump wanted to issue and executive order to end “birthright citizenship,” or the right to U.S. citizenship for children born in the United States to noncitizens.
· Continuing to disregard the constitution, Trump tweeted that Florida should ignore ballots with votes from military service members, contractors, and dependents deployed overseas. He also falsely accused the Democratic candidate for governor of “voter fraud,” which would include these military votes. All of this was to make sure that Rick Scott, his preferred candidate would take over as governor.
· Trump’s Attorney General Jeff Sessions rolled back a guidance from President Obama that helped states end debtors’ prison. This is when people who are too poor to pay for any fines are imprisoned. As Chiraag Bains wrote, this roll-back is “the latest sign that the federal government is retreating from protecting civil rights for the most vulnerable among us.”
· Under Trump, Republicans in Congress are targeting the Johnson Amendment, which prohibits religious groups and churches from getting involved in political activities. They passed a measure prohibiting the IRS from revoking the tax-exempt status of churches who participate in political activity.
· All of the atrocities of this administration will be spelled out in the Immigration article; however, it’s worth noting here that Trump forced Justice Department staff to quit due to his “mean-spirited and unscrupulous campaign” against and attacks on immigration judges, which included individual quotas, limits placed on immigration judges’ abilities to delay deportation orders, and arbitrary removal of immigration judges.
Judicial Nominees
· Trump continued to stack the federal judiciary with misogynist and anti-LGBT judges and justices who may or may not be deemed unqualified for the bench by the American Bar Association.
· The right-wing Heritage Foundation, which has supplied Trump with his judicial nominees, raised serious ethical concerns when it created a secret training program for conservative recent law school graduates who had clerkships with federal judges. The grads were required to promise to keep the program’s details secret and pledge not to use anything “for any purpose contrary to the mission or interest of the Heritage Foundation.”
· As reporter Charles P. Pierce pointed out, “There are more Kavanaughs and Scalias pouring into the federal courts by the day.”
—> Gordon Giampietro was nominated to serve on the U.S. District Court for the Eastern District of Wisconsin. He called marriage equality “an assault on nature” and “against God’s plan.” He had the same views about contraception.
—>Wendy Vitter , nominee for federal judge in the Eastern District of Louisiana, refused to say whether she agreed with the landmark civil rights case Brown v. Board of Education, which desegregated public schools.
— >For the 9th Circuit Court of Appeals, Trump nominated Ryan Bounds, a member of the Federalist Society, which Trump put in charge of identifying candidates for judicial nominations. Bounds has a history with racist writings, which is what ultimately caused him to withdraw his nomination.
— >Marvin Quattlebaum was appointed to the Fourth Circuit, where he promptly affirmed a decision by immigration authorities to deny the ability to apply for citizenship to a woman who came to the US from Guatemala as a minor.
— >Allison Jones Rushing was nominated for an empty seat on the Fourth Circuit Court of Appeals. The youngest nominee to date at 36 (meaning that she has another 30–40 years on the bench), she previously did a lot of work for the Alliance Defending Freedom, a rabid anti-LGBT organization that was designated a hate group by the Southern Poverty Law Center. She also represented Ernst & Young in a case arguing that employees denied overtime pay could then also be denied the right to unite as a class action. In addition, she does not believe in the separation of church and state. Like most of Trump’s nominees, this one does not have the support of the American Bar Association.
· The People for the American Way has a blog Confirmed Judges Confirmed Fears, which details all of the astounding rulings made by Trump appointees.
· All of Trump’s nominees are able to breeze through the confirmation process thanks to Mitch McConnell shirking historical precedent of a nominee’s home state Senator having the right to deny or advance a nominee to the Judiciary Committee, which he did in several states, including California in order to appoint a right-wing conservative to the 9th circuit.
· As expert reporter Nina Totenberg pointed out,
“Since Trump was sworn in . . ., the GOP Senate leadership has moved aggressively to speed confirmation of new judges, casting aside long-existing practices and traditions that ensured some consensus in picking the judges who sit on the federal courts of appeal. Gone, for all practical purposes, is the tradition that prevented action on a judicial nominee who was not approved by his or her home state senators. Gone is the practice of not holding a confirmation hearing until the American Bar Association has completed its professional evaluation of the nominee. Gone is the general practice of not piling up multiple nominees in one hearing. And now, for the first time, the Senate Judiciary Committee is holding confirmation hearings during a Senate recess.”
· Weeks before the November election, McConnell pushed through 15 more nominees and recessed the Senate until the election was complete.
· This is the same Mitch McConnell who obstructed every judicial nominee under President Obama under the astounding theory that President Obama didn’t have a right to nominate anyone and thus implemented a blanket filibuster against all judicial nominees. McConnell also threatened to eliminate the three vacant seats (whose nominees were blocked by McConnell), which is just another way of stacking the federal court system.
· As of August 2018, Trump had appointed 60 judges to federal courts. By October, Trump-appointed judges represented one-sixth of the federal judiciary. Trump has so far appointed more appellate judges than any other president in the same amount of time, ensuring that it will be decades and generations before the country can recover from this administration.
· Senator Patrick Leahy, former chair of the Judiciary Committee, noted that “the new partisan process is eventually just going to make the federal courts look not independent but political. And that’s going to hurt everybody.”
· At the Supreme Court, author Jay Willis described how “Mitch McConnell’s stolen supreme court seat is already fucking up America.”
Supreme Court
The most consequential thing that has happened under the Trump regime is the retirement of Justice Kennedy. In fact, Justice Kennedy’s entire legacy now will be as the person who solidified a Trump Court. Reporter Ian Millhiser does a great job at describing the “horrifying consequences of Justice Kennedy’s retirement.” He pointed out, “The Court’s ‘swing’ vote is now Chief Justice John Roberts — the man who authored a decision holding that America isn’t racist enough to justify a fully operational Voting Rights Act three years before Donald Trump was elected. Things are going to get bad. Fast.”
That was never more apparent than when Trump nominated Brett Kavanaugh, a “politically connected member of Washington’s conservative legal establishment.” Kavanaugh is “radically conservative” and much more political than others on the federal bench. As reporter Dylan Matthews noted, “He’s a veteran of every conservative cause you can imagine, from the 2000 Florida recount to the fight against Obamacare.” As a judge, Kavanaugh ruled against net neutrality, saying that it violates ISPs’ right to edit the Internet. He has a long history of ruling for the gun lobby, for “religious liberty” justifications to discriminate in any way, and against any women’s rights, including blocking an abortion that a 14-year-old immigrant in a detention center wanted to obtain. He praised former Chief Justice Rehnquist for dissenting in Roe v. Wade, for rejecting the idea of separation of church and state, and for trying to eliminate the exclusionary rule, which prohibits police from using illegally obtained evidence. He ruled against the public interest in almost all of his federal cases.
Of course, he also turned out to be another pea in Thomas’s pod as a misogynist with a history of harassing and actually sexually assaulting women. One of his accusers alleged that Kavanaugh and others spiked girls’ drinks at high school parties with to make it easier for them to be gang raped. Dr. Christine Blasey Ford, one of the most credible witnesses as a victim of sexual assault to ever testify, was dismissed and revictimized, not unlike Anita Hill almost 20 years earlier. In fact, long after Kavanaugh threw a temper tantrum trying to defend himself and was pushed through the confirmation hearing, Dr. Ford continued being harassed and had to move four times.
Perhaps more of that would have come up had Trump not withheld more than 100,000 pages of Kavanaugh’s records. Reminiscent of Justice Thomas’s confirmation hearing, the Senators interrogating Kavanaugh’s victim of sexual assault were Republican men and not one woman. Yet Kavanaugh still lost his mind and his control during the hearings. And as it turned out, Republicans knew about other accusers and tried to speed up the confirmation process because of it. In fact, staffers of Republican Judiciary Committee members obstructed one accuser’s efforts to provide testimony.
Trump said that had it been up to him, Kavanaugh would have been “pushed through” without any confirmation hearing. But the confirmation hearings were never about finding out the truth; they were merely a lesson in power and “who wields it and at whose expense.” As reporter Matt Thompson noted, “If truth, rather than power, were the object, . . . we would have to stop pretending that one of the main engines of our politics at this moment is not who holds power over women — not merely over women’s rights or bodies, but over the very reality they inhabit.”
In the end, the White House announced in the middle of the night that Trump’s FBI had completed its sham of an investigation of Kavanaugh after not being allowed to interview dozens of people, including Kavanaugh and his accuser themselves. The investigation report was then kept from the public and only allowed to be viewed by Senators in a secure location.
In the meantime, waiting for the Kavanaugh confirmation, the Supreme Court pulled from the docket two major cases that test whether discrimination laws apply to LGBT workers.
Kavanaugh’s confirmation revealed the “moral rot that allows America to ignore so many assault survivors” and reflects “a political system that is built upon and reinforced by a set of toxic masculine principles,” as Sabrina Hersi Issa pointed out. And Mitch McConnell’s prediction that the GOP takeover of the judiciary would continue was true.
Reporter Adam Serwer stated it plainly: “The Supreme Court is headed back to the 19th century; The justices again appear poised to pursue a purely theoretical liberty at the expense of the lives of people of color. . . . Like the Supreme Court of that era, the conservatives on the Court today are opposed to discrimination in principle, and indifferent to it in practice.”
· Trump’s Supreme Court allowed Arkansas to ban medical abortion, or abortion by pill, at least temporarily. The Court sent the case back to the federal judge who ruled against the ban with instructions to determine how many women are actually going to have an undue burden under the ban. (We can guess that the final number won’t matter a bit to this Supreme Court.) This case was seen as “the first big test of the Supreme Court’s 2016 decision striking down key provisions of a Texas law that the justices said imposed an undue and unjustified burden on women’s access to abortion.”
· In another blow to women’s rights and consumer protections, the Supreme Court struck down a lower ruling about California’s law requiring crisis pregnancy centers to be open and honest with women and not lie about their services or goals. Now, these fronts for religious organizations can continue lying to vulnerable patients.
· The Supreme Court also ruled that, with only one exception, all of the gerrymandered Congressional districts in Texas are not racially motivated so are all OK.
· In addition, the Supreme Court upheld Trump’s overtly racist travel ban targeting Muslims.
· This Court upheld a ruling allowing states to purge their voter rolls, siding with the right wing determined to place as many obstacles as possible between voters and their ability to actually vote. This was in conjunction with 9 other states with histories of racial discrimination aggressively removing registered voters from their rolls. It is estimated that 2 million more voters have been purged because of this ruling, which has had impacts through 2018.
· In other states, Republicans are using the American Disabilities Act to disenfranchise voters. In Georgia, a majority-black county closed 7 of its 9 polling places claiming that they can’t continue to operate because they aren’t ADA compliant.
· Also in Georgia, the Secretary of State (who was also conveniently running for governor) created a an “exact match” policy requiring information in voters’ registration applications to match up exactly with their existing information in the Department of Driver Services database or the Social Security Administration’s records. Journalist Ari Berman breaks the policy down:
“This kind of exact-match system is known as ‘disenfranchisement by typo’ because when you submit a voter registration form, if you have a hyphen missing on your name, if you have an apostrophe missing, if you use ‘Tom’ on one form and ‘Thomas’ on another, your form is going to be blocked by the state of Georgia.”
This policy put 53,000 voter applications in limbo, with 70 percent of them being from black voters. Interestingly, in 2009 the federal government blocked this exact-match policy from going into effect because they said it was discriminatory against minority voters.
· Georgia wasn’t done, though. Immediately after a suit was filed against election officials for ignoring security holes in the election servers, the server was quietly wiped clean.
· Just outside of Wichita, Kansas, officials moved the sole polling site from the center of town to a facility outside the city limits and more than a mile from public transportation.
· In North Dakota, the Supreme Court made it harder for tribal people to vote by upholding a ruling requiring certain forms of identification and proof of residential address in order to vote. Many Native Americans in ND lack identification and do not have residential addresses on their identification cards.
· In a blow “to the American middle class and to efforts to close the gaping income disparities in this country,” the Court ruled that those who are in a union — teachers, firefighters, public health workers, and other government employees — should be able to enjoy the benefits of union contracts with no requirement that they actually pay into the union.
· In another blow, the Court made it difficult for the government to prohibit companies from abusing market power and enforcing antitrust laws.
Federal Level
· In Detroit, U.S. District Judge Stephen Murphy III ruled that children have no fundamental right to learn to read and write, or to be taught literacy.
· A federal court in Texas ruled that the Affordable Care Act was unconstitutional after the 2017 tax bill removed the healthcare mandate.
State Level
At the state level, things are no less grim:
· In Pennsylvania, state Republicans tried to impeach five of the seven state supreme court justices for striking down the state’s gerrymandered Congressional districts.
· In West Virginia, state republicans were successful in impeaching the state’s supreme court to change control from democrat to republican. This impeachment in particular re-ignites concerns about the overriding influence of politics and money in the judiciary.
The next article will cover ethical issues during Trump’s second year.
