While You Weren't Paying Attention, The Rule Of Law May Have Died
Donald Trump's worst damage may have been what he did to the federal judiciary
If you listen to the above clip, you’ll hear former Sen. Al Franken (D-MN) make a very concise and accurate argument about how Republicans stole two Supreme Court seats. Franken’s correct about how it transpired- and also about how Republicans have shattered the credibility of the Supreme Court.
Of course, Republican shill Alice Stewart was having none of it, but when challenged by Franken, she couldn’t support her argument. Perhaps that may have been because the case she was making was indefensible. Senate Majority Leader Mitch McConnell’s perfidy was transparent and impossible to miss; there was no way for Stewart to throw enough lipstick on that pig.
Perhaps she forgot that while Al Franken may have once been a comedian, he’s also one of the most intelligent people to have ever served in the Senate. The man knows of which he speaks, and he’s a top-notch debater. Not that he needed to be in this case; his opposition wasn’t nearly up to the task.
Franken’s most disturbing charge was that McConnell and the Republicans had succeeded in destroying the credibility of the Supreme Court. Judging by what’s happened since Donald Trump appointed Amy Coney Barrett, there’s no arguing with the contention that the once nonpartisan Court is now anything but.
Chief Justice John G. Roberts Jr. defended the integrity of the Supreme Court…in his first public remarks following a tumultuous term, saying that disagreement with its decisions should not lead to questions about its legitimacy.
“The court has always decided controversial cases and decisions always have been subject to intense criticism and that is entirely appropriate,” Roberts told a gathering of judges and lawyers in Colorado Springs. But he said that disagreement with the court’s role of deciding what the law is has transformed into criticism of its legitimacy.
“You don’t want the political branches telling you what the law is. And you don’t want public opinion to be the guide of what the appropriate decision is,” said Roberts, who added, to laughter, “Yes, all of our opinions are open to criticism. In fact, our members do a great job of criticizing some opinions from time to time. But simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”
The Court has always decided controversial cases, and some of its decisions have come under intense criticism, but that’s not the point Franken was making. Instead, Roberts is arguing past the obvious point: Donald Trump turned the Supreme Court into a Conservative playground. He deliberately stacked to overturn Roe v. Wade.
Mission accomplished, eh?
While the Court is stocked with humans who have their agendas and opinions, most have legitimately been able to decided cases based on the law. And then came Neil Gorsuch, Brett Kavanaugh (“I like beer!!”), and Amy Coney Barrett (the Court’s first handmaiden), all of who swore to respect precedent- stare decisis. And all of whom lied during their job interview in the Senate.
With the support of three justices chosen by President Donald Trump in the past five years, the Supreme Court now has a 6-to-3 conservative majority. Those justices sent the court on a dramatic turn to the right in the term completed this summer, overturning the guarantee of a constitutional right to abortion in Roe v. Wade, striking a gun control law in New York, limiting the power of the Biden administration to confront climate change, and scoring victories for religious conservatives.
I’m old enough to remember when Conservatives in Congress (Tom DeLay, anyone?) frequently ranted about “Liberal judicial activism.” Yet, for some reason, it’s not “judicial activism” when Conservatives do it, even though what the Roberts Court has done is far more radical than anything Liberal justices might’ve been expected to do.
In addition to the Supreme Court, many of Trump’s appointees to the federal judiciary have become infamous for making highly partisan decisions with, in some cases, little basis in the law. Some of these decisions, however, do have a solid basis in “WTF???”
A Trump appointee in Arkansas ruled in February that the Voting Rights Act can’t be enforced by private individuals or groups, despite more than five decades of such litigation.
In May, another Trump appointee in Florida canceled scheduled arguments in a challenge to the federal mandate for mask use in transportation, then rushed out a decision striking down the requirement just days before it was set to expire.
Also in May, a Trump-appointed federal judge in Texas blocked the Biden administration from lifting pandemic-related immigration restrictions Trump imposed in 2020.
We could go on, but you see the problem. Conservative “judicial activism” appears to be far more of a problem than the Liberal variety that Republicans once moaned about. Yet no one on the Far-Right has uttered a peep in protest because the jurists in question are on their side.
The rule of law can only flourish when jurists follow the law. That’s not to say there can’t, won’t, or shouldn’t be controversial decisions. Sometimes it’s the nature of the law that it must break new ground to decide contentious matters. But when judges are the sources of controversy, the scales of justice become unbalanced. Unfortunately, that’s precisely what Donald Trump sought to do- and largely succeeded in doing.
When “WTF???” becomes the basis for the rule of law, it doesn’t bode well for future generations.
During just four years in office, Donald Trump replaced one-third of the Supreme Court and about 30% of the entire federal bench. And these are lifetime sinecures. Once in office, removing someone from the federal judiciary is exceedingly challenging. Appointing someone in their early 40s to a federal judgeship can portend disaster if they’re an incompetent Far-Right partisan firmly grounded in “WTF???”
That could mean 30-40 years of “Holy shit, what do we do now?” precedents that could impact the rule of law for generations to come.
Those envelope-pushing rulings have fueled questions about whether Trump’s judicial picks are more conservative or more partisan than those of previous Republican presidents and whether decades of unorthodox decrees from those judicial picks lie ahead….
Trump’s preference for younger nominees also means his judicial picks could be handing down decisions for the next half-century.
Trump has made clear he expects unfleeting loyalty from the judges he appointed, referring to them as “my judges” and grousing publicly when they ruled against his administration.
“If it’s my judges, you know how they’re gonna decide,” Trump assured evangelical leaders during the 2016 campaign….
“His judges, overall, are very conservative — more conservative than George W. Bush judges, who are pretty conservative,” said University of Massachusetts Dartmouth political science professor Kenneth Manning, who studied early Trump trial court judges for a 2020 paper.Donald Trump: The gift that keeps on giving.
Trump appointees are the most conservative of the past 10 presidents, the study found, particularly on issues of civil rights, civil liberties, labor and economic regulations. However, Trump’s judicial picks were more liberal when ruling on criminal justice issues, Manning and his co-authors found.
Donald Trump: The gift that keeps on giving.
Trump knew that the time might come when he or his cronies might need a favorable ruling, so those he appointed to the federal bench were too often partisan jurists he knew he could count on for a favor should he ever need one. They may have been borderline incompetent, but if they’re members of the Federalist Society, that was all Trump needed to know. Membership in that august (and very Conservative) organization overrode any concerns about their judicial competence. They were deemed politically and dispositionally reliable, which was all that mattered.
With the Senate being mired in a 50-50 split between Democrats and Republicans, Democrats didn’t have the energy or the metaphorical bullets to contest Trump’s appointments. They had to choose their battles carefully, and any battle over federal judgeship was deemed to distract from “bigger” issues.
While Donald Trump isn’t someone you’d typically think would be capable of playing the long game, but in this case, his strategy was not unlike a mob boss. He’d do a favor for someone, with the implication that if the need ever arose, he’d expect that favor to be returned. It may not have been mentioned directly to the judge in question, but it probably didn’t have to be.
So now we have a federal judiciary that skews younger, more Conservative, and more willing to play fast and loose with the law. It’s just the sort of thing someone looking to dismantle democracy might find to be a positive development.
The clear and obvious packing of the Supreme Court was an impossible-to-miss example, but the even more dangerous trend is what Trump did with the federal judiciary. Again, that’s something that flew under the radar because it didn’t attract much media attention. It may, in the long run, have a far more significant and much broader impact on American life.
America, this is what happens when you don’t vote. Don’t lose your right to use your voice but not exercising your right to vote. There’s too much at stake this November.
Unless, of course, democracy isn’t a big deal for you.
Alito's appeal to a 17th C. jurist who literally believed in talking snakes and witches on broomsticks is pretty telling. I mean, I say fuck it! Let's go back to the 13th -- 14th C's and bring back Judicial Combat!