Trump and the GOP's Irresponsible Power Grab Could Take Generations to Reverse

(Craig Benedict, a retired federal prosecutor, wrote this article.)

            Democrats recently won resounding victories in Virginia and other states, with citizens responding strongly in opposition to the Trump Administration. Despite their delight, Democrats have so far to go to balance the state of affairs favoring Republicans that celebrations are barely called for. Consider which party holds the reigns in the various components establishing the political balance of power in the United States: the Presidency (Republican);  the U.S. Senate (Republican); the House of Representatives (Republican); the majority of state governorships (Republican); the majority of state legislatures (Republican); and the majority of appointments to the US Supreme Court (Republican). Moreover, Republican legislatures have gerrymandered voting districts so successfully across the country that even when many more voters choose Democratic candidates, Republicans are likely to still win. Consider Virginia’s recent vote. There, the entire state House of Representatives was up for election. Voters cast ballots favoring Democrats statewide by a huge margin: 55 to 45 percent; and yet it remains unclear whether the state legislature will even change from Republican control. Had the state not been so strongly gerrymandered following years of Republican control, one would have expected an approximate 55 percent democratic majority. And nationally, twice since 2000 Republican nominees have been elected President of the United States despite a majority of Americans voting for the Democratic candidate. These election anomalies reflect a bias in our election process – established by our delegate system – where Democrats’ votes are diluted by their concentration in urban areas.


     The successful Republican exercise power to limit Democrats extends beyond elections to political office. Everyone is well aware of the naked political success the Republicans had in refusing to even hold hearings on President Obama’s choice to fill the Supreme Court seat vacated by the death of Justice Anton Scalia. This unwillingness occurred even though more than sufficient time existed for Senate hearings and consideration of Obama’s relatively moderate nomination. Everyone also likely recalls thereafter that Senate Republicans changed their chamber’s long-standing rules through their exercise of the “nuclear option,” eliminating filibusters for votes on Supreme Court nominees. This partisan maneuver permitted President Trump to elevate Judge Gorsuch to the highest court with a bare majority and not one Democratic vote. Never before had this been permitted. 


     What fewer people likely recall is the extent to which Republicans engaged in obstructionist tactics during the Obama Administration to block the filling of many open vacancies on federal courts of appeal and district courts. Once Trump took office, Republicans then immediately took positions ignoring their reasoning for blocking Obama’s nominees. As just one example of this naked exercise of power, consider the Court of Appeals for the District of Columbia Circuit – a judicial body that sits right below the Supreme Court and which renders most of the critical decisions impacting our nation’s federal agencies (i.e., the second most important court in the country). For several years during Obama’s tenure, Senate Republicans argued that despite the existence of a vacancy on this court, the spot should not be filled because insufficient work existed to render an additional judge necessary. They refused to advance Obama’s nominee for a Senate confirmation vote. With no pretense that circumstances had changed, immediately upon Trump taking office Senate Republicans changed their position and filled the vacancy. 


    Notwithstanding the above, as it relates to our courts, the true damage to our judicial system and American justice at large is not that a given President has an opportunity to appoint a large group of new judges. Americans expect Republican Presidents to appoint generally conservative judges and Democrats to do so with regard to progress judges. The problem with Trump is “his” selections are being farmed out to the Federalist Society, which is recommending judges that are far more out of the mainstream than ever before. The Federalist Society is a group of extreme conservatives (no hyperbole involved) who believe that judges must take an originalist view of the constitution, and impose it on all their decisions. Generally stated, originalists believe that the constitution must be interpreted as framers of the constitution intended when they wrote the document in 1789. This means that as our society evolves in its understanding of common decency and justice, originalist judges must never the less adhere to standards of the late 1700s. Under this judicial philosophy, unduly harsh “justice” for even minor crimes cannot constitute cruel and unusual punishment and therefore be deemed unconstitutional, so long as the sentence meets the standards that existed two and one-half centuries ago. Similarly, rigid positions apply across the full panoply of judicial decision-making. The fact that lawmakers of the late 1700s could have had no inkling about privacy concerns in the age of smartphones and the Internet is irrelevant. Originalist judges impose standards upon a modern society beyond the framers’ wildest imagination. Such judges forbid themselves to apply contemporary concepts and standards to our constitution. Instead, they treat it as a dead document, one that ties them to the profound prejudices and ignorance that existed hundreds of years ago. 


     Why would Trump do such a thing when just a decade earlier he supported numerous relatively progressive causes and elected officials? The answer is naked self-interest. His core support resides within America’s most conservative voters. If they are happy, he is too.  But if such willful blindness to the harm his decisions are doing to the American justice system were not bad enough, many of his originalist appointees are extremely weak choices, even by his odd, odd standards. Throughout modern history, the American Bar Association (ABA) has provided guidance to Presidents of both parties about the quality of the judges being contemplated for lifetime appointments to the federal bench. The ABA ranks nominees as “Highly Qualified,” “Qualified,” or “Not Qualified.” For the federal bench, prior Presidents have strived to appoint only highly qualified judges (though, from time to time, a merely “qualified” judge has been confirmed). In an unprecedented elimination of standards, a number of Trump’s judicial nominees have been rated as “Unqualified” by the ABA. Included among these dismal nominees were some that have never argued a single motion in any court at any level (small claims, local, state, or federal), or similarly tried a single case in any of these courts. It is hard to contemplate how such judges could even minimally perform their duties without having rudimentary experience. Yet as an indication of how much Republican leaders have cynically given up on standards of nearly any sort, the Senate quickly confirmed these nominees on straight party-line votes. Americans with even a modicum of common sense know how critical it is to have federal judges who are the very brightest and experienced members of the legal profession, as the precedents of their decisions impact us all. 


     Imagine trying to: win a war with generals who had never been in a single battle; design a nuclear weapon guidance system with individuals who had no background in physics; or educate college students in economics with professors who knew only about art history. There are many town justices or small claims court judges who can do relatively little harm if they are not the most qualified individuals. But our federal courts are the crown jewels of our judicial system. Intentionally putting judges on the federal bench who are wholly unqualified is dangerous and will ultimately harm everyone in our country.