Senate Majority Leader Mitch McConnell likes to tell the story about the time he looked President Barack Obama in the eye, after the death of Justice Antonin Scalia, and told the president, by his own account, “You will not fill this Supreme Court vacancy.”
The announcement was supremely frustrating in the moment but is ominous in hindsight. It now looks like a time when McConnell began to taste victory in the long game the GOP has been playing for years with regard to federal courts: grooming young, ultraconservative lawyers; embedding them in influential networks, largely via the Federalist Society; and waiting for the stars to align to seed them through the courts in earnest. When the stars did align, bigly, for Republicans in the 2016 election, not only was a prize Supreme Court seat waiting, but so were scores of lower court seats, held open by Republican senators who refused to advance Obama’s judicial nominees.
This state of affairs was exploitable by any Republican White House. But it’s hard to overstate how pernicious it is under the Trump administration. Despite the recent ramming through of the tax bill, and with the mushrooming Russia scandal threatening to envelop it at any moment, the administration has doubled down on one commitment it knows will make its hard-right base happy: appointing judges.
Tranche after tranche of judicial nominations has come forward; what is abundantly clear is that the vetting of many nominees has been cursory or nonexistent. While some nominees have résumés that look like those of traditional GOP nominees of the past, a growing number do not.
The marquee examples of this egregious lowering of standards were Brett Talley, Jeff Mateer and Matthew Petersen. Talley was a thirtysomething nominee for a federal court in Alabama who had never tried a case and had less than three years’ total legal experience. What he did have was a lengthy history as a Republican speechwriter and blogger and a spouse who works in the White House. Had anyone vetting Talley probed his social media activity, which he did not disclose to the Senate, she would have seen writing that looked suspiciously like a defense of Ku Klux Klan activities in the 19th century. Mateer is an anti-LGBTQ crusader so rabid that he publicly denounced transgender children—children—as “Satan’s plan.” Petersen’s inability to answer basic law school questions at his confirmation hearing was so awkward that it became the subject of viral videos. As it turned out, these nominations were a bridge too far even for die-hard GOP partisans on the Senate Judiciary Committee: all three were scuttled.
But the wobbling on these nominations is the exception, not the rule: the Trump administration lately has been touting its record-breaking number of circuit court confirmations. Among many other woefully unfit appointees is John Bush, confirmed this year to a seat on the 6th Circuit Court of Appeals, who blogged anonymously for years, spreading racist birther theories about President Obama and mean-spirited attacks against Obama, LGBTQ rights, and an assortment of people and positions he disliked.
A nominee in North Carolina, Thomas Farr, appears to have misled the Senate Judiciary Committee about his role as a lawyer for Jesse Helms’s Senate campaign, in one of the sleaziest voter-suppression scams ever perpetrated: a mass mailing of postcards to African-American voters warning that they might not be legally registered to vote and could be prosecuted for voter fraud. His nomination remains on track.
In a climate in which harassment of women in the workplace is in the national spotlight, Don Willett, just confirmed to the 5th Circuit, harbors attitudes that cause deep concern. While working in Texas state government, he aggressively belittled problems faced by working women, ridiculing “talk of ‘glass ceilings’” and dismissing concerns regarding “sexual discrimination/harassment.” Willett carried his hostility to the Texas Supreme Court, where, as a justice, he ruled to weaken laws that protect women against discrimination, sexual harassment, and sexual assault.
This administration and GOP-led Senate have taken a wrecking ball to norms that governed the nomination process for decades.
It’s not just the quality of nominees that has suffered. This administration and GOP-led Senate have taken a wrecking ball to norms that governed the nomination process for decades. Bipartisan consultation with nominees’ home-state senators is dead. The hundred-year-old “blue-slip” tradition, giving home-state senators the go-ahead for nominations to proceed, was just junked.
Likewise, the ratings produced by the American Bar Association no longer count: this administration pushed four nominees rated “Not Qualified” by ABA evaluators. In past administrations, such ratings would typically force a candidate out of the running; not today, when the administration and its allies exclusively seek party loyalists, preferably in early middle age, who will sit on the bench for decades.
Conservatives will argue that Trump voters are getting what they want and deserve: conservative judges. But we’d argue that there are thousands of smart, qualified Republican lawyers who would make fine federal judges. These men and women are being passed over in favor of ideologues.
What’s at stake is nothing less than the legal and social progress of decades. The 20th and early-21st centuries saw enormous strides in rights for women, workers, LGBTQ Americans, and people of color. These, along with critical protections for the health and safety of the public and the environment, were often hard-won in the courts.
So what should happen now? In recent days, Senate Judiciary Committee Democrats got noticeably tougher: not just speaking out against unqualified nominees but walking out–denying the committee the quorum needed to ram through more nominations. Senators who are opposed to the abuse of judicial nominations don’t have many tools at their disposal, but they must use the ones they have. Meanwhile, senators who have gone along to get along, putting party before country on this and so many issues, are overdue for a reckoning with their consciences. Only they can answer the question, When is enough enough?
Nan Aron is the founder and president of Alliance for Justice, a national association of more than 120 organizations committed to progressive values and an equitable, just, and free society.