Trump’s virtual lily-white court picks are a judicial horror
Earl O. Hutchinson | 12/14/2017, 6 a.m.
There was little surprise at the news that Trump is packing the federal judiciary with as many white, conservative males as he can dig up. His anti-diversity federal judgeship count is indeed gruesome. To date, he has deemed only one black and one Hispanic worthy of a bench appointment. Three decades ago, Reagan took much heat for his see no, find no black and Hispanic judicial appointments.
Going strictly by the numbers, Trump makes Reagan look like a piker with his abysmal refusal to nominate blacks and Hispanics. The kicker in this sad, sorry, picture is that many of the white guys that Trump is shoving on the federal bench are not even remotely qualified. His picks have gotten more “not qualified” ratings from the American Bar Association than any other president since the early 1960s. But then again it doesn’t matter what the ABA has to say about Trump’s picks, he made it clear that he wouldn’t be paying any attention to its rating of a potential judicial pick.
The final insult to diversity injury is that there’s almost nothing that Democrats in the Senate can do about it. Under the deal cut by former Senate Majority leader Nevada Senator Harry Reid, the Senate can’t block even a blatantly “non-qualified” appointee from the bench. Reid got rid of the required majority 60 votes needed rule to confirm a federal judge. The majority vote confirmation rule now only applies to Supreme Court picks.
This is only the beginning of the racial judicial nightmare. Trump almost certainly will be able to appoint dozens more judges to the federal bench over the next few years. They will in almost all cases be judges cut from the same hardline right-wing ideological cloth as his oft touted favorite justices, Antonin Scalia and Clarence Thomas. And, if they choose, sit on the bench until they drop dead or are so infirm that they choose to call it quits. Unlike a SCOTUS justice, they will be mostly no name, and no face to the general public. This means that they will be able to do their legal dirty work far away from the glare and scrutiny of the media and the public.
Trump’s white judges will be among the judges that hear roughly 60,000 cases a year compared to the Supreme Court’s roughly 75 cases. They are for the most part the judges of last resort for a controversial legal and impactful case. Their rulings are the ones that stand as binding law for not just years, but potentially generations to come. They, as Trump demands, are anything but non-partisan and objective. Their partisanship often comes through in their rulings and opinions on hot button cases that involve civil rights, civil liberties, the environment, and what corporations can and can’t do.
A 25-year study by George Washington University, from 1970 to 1994, found that by a wide margin, Republican-appointed judges turned back challenges by individuals and environmental groups challenging decisions of the Environmental Protection Agency in most of cases. Democratic-appointed judges by contrast accepted challenges in the majority of cases. The study was done almost 20 years ago, and the numbers would almost certainly be the same if not higher in assessing cases that even more ideologically bent federal appeals court judges have heard in the past two decades or tossed in everything from the environment to civil rights.
Appeals court judges take an oath to render the law fairly and impartially. They like to think that they do just that. There are few cases where an appeals court judge will take a position on a case that openly displays their partisan bias. Yet, they all hold political views, some very strong political views, and that inevitably colors how they interpret facts and testimony in a case. A judge can find a case law rationale for any ruling that he or she wants to make on a case that often conforms to their political and ideological views.
Trump egged on by conservative legal and public interest groups knows this. Their goal is a total conservative remake of the federal bench. It’s this scary prospect that makes the federal judiciary the horror that Trump’s virtual lily-white picks will usher in.
Earl Ofari Hutchinson is an author and political analyst.