We can't let Trump pack the court with radicals
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It’s become a Washington cliché. First, the Republican president nominates a candidate for vacancy on a federal court, from the Supreme Court on down. Next, we hear mountains of praise about how qualified and objective the nominee is; then, fawning reports about his love of his family; then, things turn to the central falsehood: We hear how the nominee’s personal views absolutely do not play into his decision-making. 

On the bench, these Republican nominees almost immediately drop their mask of objectivity. We see it already from the Republicans’ biggest judicial victory in generations: Supreme Court Associate Justice Neil Gorsuch. Gorsuch has already shown his true colors, taking a stand to the right of Chief Justice John Roberts on government funding of religious institutions, showing hostility toward gay marriage, and support for President Trump’s Muslim ban. Gorsuch is not just a conservative justice — he’s an activist justice. After only a few decisions, legal analyst Jeffrey Toobin describes Gorsuch as “Clarence Thomas' Mini-Me.”

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The People’s Defense, a coalition of progressive groups led by advocacy organization NARAL Pro Choice America, worked diligently to unite Democrats in opposition and shift the spotlight to Republican senators and whether they would vote for the nuclear option. In the end, the window to pressure Republicans was too short, and Gorsuch won confirmation thanks to Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellGOP strategist donates to Alabama Democrat McConnell names Senate GOP tax conferees Brent Budowsky: A plea to Alabama voters MORE breaking Senate rules.

 

Trump inherited the largest block of federal judiciary vacancies (108) since President Clinton and will enjoy the opportunity to “to sculpt the courts to his liking.” While the GOP and Trump continue to be divided on legislation — on judicial nominations, Trump and the institutional GOP are in perfect synchrony.

To preserve the federal courts as an impartial, legitimate branch of government, Democrats must vote against every one of Trump’s lifetime appointments, unless extreme circumstances dictate otherwise. In turn, the burden will fall on Senate Republicans to choose between a lawless president and the integrity of America’s judiciary. 

As my friend and president of the Alliance for Justice Nan Aron says, the left views the courts as a pathway to justice, but the right views the courts as a pathway to power. The Republican strategy for their judicial takeover took decades to build. Groups like the Federalist Society and the Heritage Foundation have slowly and successfully worked to bury a far-right political ideology deep in the legal theories of its judges. Their end game isn’t about any individual political issue — it’s the comprehensive political capture of an entire branch of government — the judicial equivalent of gerrymandering. 

As luck would have it, one recent judicial nominee unintentionally pulled back the curtain early, showing us how ideologically extreme these nominees really are.

John K. Bush, Trump’s newly confirmed nominee to the 6th Circuit Court of Appeals, seemed to have all the trappings: Harvard law degree, clerkship on the 8th Circuit Court of Appeals, corporate law experience, and the backing of his home-state senator, Mitch McConnell.

When the White House announced his nomination, White House Counsel Don McGahn said Bush was among a group of “strong and principled jurists to the federal bench who will enforce the Constitution’s limits on federal power and protect the liberty of all Americans.” Seems like business as usual.

Then came the disclosure of Bush’s blogging: He authored over 400 posts under the pseudonym “G Morris” on a Kentucky political blog. Lo and behold, Bush wasn’t an objective potential jurist seeking to call “balls and strikes,” as Chief Justice Roberts once said. He was an angry, misogynistic ideologue who compared abortion to slavery, denounced gay marriage, called a veterans’ group “verminous,” and flirted with birtherism, a racist attack on President Obama’s citizenship.

Confronted by his own juvenile, prejudiced, and hateful posts, Bush, in bumbling testimony during his confirmation hearing better suited for Judge Judy than a federal nominee, repeatedly responded that his “personal views are irrelevant to the position for which I have been nominated.”

The opposite is true. Bush’s political ideology, and his ability to infect the law with his beliefs, is precisely why he was nominated in the first place. It’s a fundamental part of the right’s strategy to politicize the court. 

Democrats and activists cannot be fooled into thinking that Bush’s political beliefs are an exception rather than the rule among Trump’s nominees — Bush just made the dumb mistake of revealing them to the public before he was confirmed. 

Progressives must build the political infrastructure to oppose every lifetime judicial appointment from a president under criminal investigation. And Democrats must assume that the vast majority of Trump’s nominees share Bush’s ideological fury. They just don’t blog about it.

Ilyse Hogue has been president of NARAL Pro-Choice America since February 2013. She is an expert in organizing and mobilizing grassroots support around social-justice issues, including human rights, media reform and representation, and reproductive freedom.


The views expressed by contributors are their own and are not the views of The Hill.