Donald J. Trump is no stranger to the power of judges. As a businessman, he bragged about how he used lawsuits to protect his brand and to dodge bad investments through the bankruptcy process. Then, as a candidate for President, he showed his clear disdain for the independent role that judges play in our democracy. We should never forget that Trump publicly disputed a judge’s ability to rule fairly in a fraud case against Trump University because “he’s a Mexican.” Trump refused to apologize or walk back his rationale – that a judge’s heritage somehow inherently biases him against a political candidate who criticizes the country of his ancestors.
Trump’s dangerous attacks on the independent judiciary have continued even after taking an oath to uphold the Constitution. When a federal judge ruled against his administration’s actions, he disparaged him as a “so-called judge,” labeling judicial opinions “disgraceful” and “ridiculous.” As the leader of our constitutional system of government, he is actively trying to sow distrust in a co-equal branch of government so that the public will not have respect for its decisions against him.
The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!
— Donald J. Trump (@realDonaldTrump) February 4, 2017
The key question is whether the Senate will play the independent role it is assigned by the Constitution or if it will enable this hostile takeover.
Coming into office, President Trump was dealt a favorable hand. Because of Senate Majority Leader Mitch McConnell’s unprecedented obstruction, many of President Obama’s judicial nominees never received a confirmation vote – creating 103 vacancies on the federal bench. In 2017, Trump replaced at least 10 of Obama’s nominees of color with White nominees, which fits into a larger trend: more than 90 percent of Trump’s judicial nominees in 2017 were White and nearly 80 percent were male. After Obama spent eight years nominating the most diverse group judges in history, Trump is seeking to roll back that progress. Those who care about public confidence in our impartial judiciary – and our constitutional democracy itself – should ask why Trump is doing this.
Trump has also lowered the bar on what qualifications are required for these lifetime appointments. In 2017, he nominated four people who were rated Not Qualified by the nonpartisan and independent American Bar Association. This included Leonard Grasz and Brett Talley, who were two of only four nominees since 1989 to receive a unanimous Not Qualified rating from the ABA. Fortunately, at least with respect to one nominee, Republican senators showed the independence they should, ultimately objecting to Talley after questions about his utter lack of trial experience and lack of truthfulness to the Senate Judiciary Committee came to light.
However, this kind of application of the Senate’s power to check the President has been regrettably rare. Republicans in the Senate simply disregarded the extensive local comments the ABA gathered about Grasz’ reputation for bias. That was a stunning moment (and a dereliction of senatorial duty) when you consider how quintessentially important it is for everyone serving on the federal bench to have a reputation for impartiality.
Instead, Republicans in the Senate are rushing through Trump’s extreme and often unqualified nominees, discarding traditions and norms that have long served as a check on presidential power in the nominations process. Senator Grassley’s most egregious act as Chairman of the Senate Judiciary Committee was refusing to even grant a hearing on Obama’s widely acclaimed nominee to the Supreme Court, Chief Judge Merrick Garland of the D.C. Circuit. But the erosion of the Senate’s role has continued. From trashing the century-old blue slip process, to stacking hearings with multiple appeals court nominees, to ignoring Not Qualified ABA ratings, the essential vetting role that the Committee traditionally plays is being undermined.
By the end of 2017, 12 Trump nominees were serving in the powerful federal appeals courts. That total set a new record for first-year circuit court confirmations—many of which were made over the objections of the civil rights community due to their records of hostility to protections against discrimination, access to health care and equal opportunity. And, as we begin 2018, Trump will have more opportunities to reshape the judiciary with people who look and think like him.
Federal courts have played an essential role in the progress we have made toward a more perfect union – from declaring segregated schools unconstitutional to ensuring that all marriages are treated equally. Under our Constitution, federal judges are designed to be a check on the two political branches that are involved in appointing them. And there is the rub. This president does not want any institution to be a check on his power. If the Senate allows him to discredit and take over the courts, the damage to our democracy will be felt long after Trump leaves office.
Trump’s hostility to the independent judiciary should concern us all.