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Gregory P. Magarian: Trump's most tragic legacy will be seen in ranks of judiciary

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Impeachment hearings are underway. Career diplomats have testified that President Donald Trump sells out U.S. foreign policy for his own political gain. More than two dozen women have credibly accused the president of sexual misconduct. Trump-branded hotels and resorts make a mockery of the Constitution’s emoluments clause, turning the nation’s highest office into a private piggy bank.

Why do conservatives put up with all this?

Judges are a huge part of the answer. Conservatives care deeply about installing judges who will advance their agenda. Trump appears to have one judicial criterion: Appointees must be as far right as possible.

Even as the impeachment process exposes Trump’s misdeeds, his administration keeps giving conservatives exactly what they want. Since returning from the October recess, the Republican-controlled Senate has confirmed 13 district court nominees and five nominees to the courts of appeals.

A few examples:

John Bush, now a U.S. Court of Appeals judge in Kentucky, wrote hundreds of posts for an extremist political blog. Bush cited alt-right conspiracy theories, savaged LGBTQ rights, and compared abortion to slavery.

Steven Menashi, now a U.S. Court of Appeals judge in New York, has praised ethno-nationalism and supports judicial activism to strike down economic regulations. As a student, he mocked “take back the night” rallies and called anti-racism policies “a regime of intimidation.”

L. Steven Grasz, now a U.S. Court of Appeals judge in Nebraska, was only the second judicial nominee in the past 30 years to earn a unanimous “not qualified” rating from the American Bar Association. He has crusaded against LGBTQ rights and reproductive freedom.

Judges Bush, Menashi and Grasz were all confirmed on party-line or near party-line votes. They, like all Trump nominees, were vetted by the Federalist Society, a conservative lawyers club that wields nearly absolute power over Republican judicial nominations. The Federalist Society grooms right-wing law students, helps them advance professionally, and then sponsors them to become judges — think Brett Kavanaugh. For its patronage, the Federalist Society expects its hand-picked judges to deliver results.

What results? In the next few years, conservative judges will decide the future of Roe v. Wade. They will dictate whether colleges can maintain racial diversity. They will permit or forbid reasonable gun regulations. As progressives try to elect a Democratic president and Congress, conservative judges will assess voting access, gerrymandering and election security.

Even if progressives win at the ballot box, conservative judges stand ready to strike down progressive legislation on health care, climate and economic justice.

Trump’s appointees will deliver right-wing results on all these issues and many more. Seven of the 13 federal courts of appeals now have majorities of Republican-appointed judges. Trump himself has appointed more than a quarter of all federal appeals judges and nearly a fifth of all life-tenured federal judges.

Trump also has made the federal courts whiter and more male. Nearly two-thirds of his judicial nominees have been white men, more than twice their share of the U.S. population. Trump has not nominated a single African American appellate judge.

During the Obama administration, Senate Majority Leader Mitch McConnell, a Republican, put a historically unprecedented Senate stranglehold on judicial nominees. He killed Obama’s nomination of Judge Merrick Garland, a well-regarded moderate, to the U.S. Supreme Court. For Trump, McConnell has opened the floodgates.

Progressives need to match conservatives’ energy. We should tell our senators, loudly, to oppose extremist, unqualified nominees. We should demand that our presidential and Senate candidates prioritize nominating and confirming progressive judges. We should educate ourselves and our neighbors about the harm that courts are doing and the good that courts could do.

Should Democrats recapture the presidency and Senate, progressives can also consider more sweeping strategies. Just as Congress has power to increase the size of the Supreme Court, it can create new lower court judgeships. Congress can also limit federal courts’ jurisdiction, which could remove some ideologically charged issues from conservative-majority courts.

Progressives should carefully consider whether such unusual, aggressive measures would, in the long run, do more harm than good. At the same time, we need to explore every lawful option for countering the federal courts’ lurch to the right.

The stakes of the judicial nomination battle couldn’t be higher. Progressives can’t win if we don’t play.

Gregory P. Magarian is a professor of law at Washington University.


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