WASHINGTON — The GOP-controlled U.S. Senate heads into 2020 with few major legislative victories but a significant one on the judicial front: a dramatic reshaping of the federal bench.
Over the past three years, the Senate has confirmed 185 of President Trump’s judicial nominees, more than any of the last five presidents at the same time in their presidencies. That tally includes a raft of nominees approved just before lawmakers left Capitol Hill for the holiday recess.
Trump touted his judicial appointments — including the confirmations of two U.S. Supreme Court justices — as “the most incredible thing” at an Oval Office press conference the day after the U.S. House voted for his impeachment. “It’s unheard of,” Trump said of the appointments. “That’s said to be the most important thing that a president has.”
In addition to the two Supreme Court justices, the Senate has confirmed 50 circuit court and 133 district court judges, most of whom progressive groups have decried as far-right ideologues. Of those, the vast majority are white (85%) and male (75%).
So far, Trump’s nominees comprise about a fifth of all federal judgeships and nearly a third of circuit court judgeships.
Colorado’s Republican Sen. Cory Gardner has played a strong role in the reshaping of the federal bench, supporting nearly all of Trump’s nominees. He voted against Mark Bennett of Hawaii, whose nomination drew fire from gun rights groups. Despite opposition from Gardner and 26 other Republicans, Bennett was confirmed last year to the 9th U.S. Circuit Court of Appeals. When asked about his support for Trump’s nominees by The Independent earlier this year, Gardner declined comment.
In a recent guest editorial for the conservative website, Complete Colorado, Kristi Burton Brown, the vice-chair of the Colorado Republican party, called the remaking of the federal judiciary “nothing short a miracle” — one that would have been impossible without the Senate majority and Gardner’s support.
“We owe a debt of gratitude to the Republican majority in the Senate and our own Senator Cory Gardner for fighting for these pro-Constitution judges,” she wrote. “We elected Senator Gardner in 2014 because we knew he would stand up for our constitutional principles. That is exactly what he has done.”
But progressive activists says the conservative “takeover” of the federal bench — one of Senate Majority Leader Mitch McConnell’s (R-Ky.) top priorities — has profound implications for LGBTQ rights, reproductive health, voting rights, environmental protection, access to health care and dozens of other issues.
“We are really turning back the clock decades when it comes to these nominees,” said Lena Zwarensteyn, a campaign director at the Leadership Conference on Civil & Human Rights.
Paul Gordon, legislative counsel with the liberal advocacy group People for the American Way, agreed. “It’s a movement basically to repeal the New Deal,” he said, referring to the package of progressive social reforms enacted in the 1930s.
The Senate’s frenzy around judges comes in stark contrast to its approach to legislation.
Halfway through the 116th Congress, roughly 80 bills have been signed into law, some of which relate to routine or inconsequential items, such as issuing commemorative coins and naming federal buildings. That pales in comparison to recent decades, when roughly 300-500 bills became law during the full two-year session (and between 700-800 did in the 1970s and 80s), according to data compiled by the website GovTrack.
To be sure, the Senate has cleared some significant legislation, including a government funding bill that raises the age to buy tobacco products, hikes pay for troops and federal workers, and funds gun violence research. It also passed a defense policy bill that gives federal workers paid parental leave and creates a Space Force.
But the upper chamber has become known more for what it didn’t do in 2019 than for what it did.
Democrats regularly refer to it as a “legislative graveyard” and point out that the House has passed more than 400 bills, including at least 275 with bipartisan support, that are sitting on McConnell’s desk. These include legislation that would stiffen background checks on gun purchases, strengthen equal pay laws, reauthorize the Violence Against Women Act and more.
McConnell relishes his success in stopping bills passed by the Democratic-held House, even referring to himself as the grim reaper. “None of that stuff is gonna pass,” he has said.
But he regularly boasts of his action on Trump’s judges, tweeting recently: “In less than three years, President Trump has appointed and the Republican Senate has confirmed 50 circuit judges. That is already the most in any president’s whole first term since 1980.”
Erosion of norms
McConnell credits his progress on judges — which don’t require House approval — to a rules change he engineered that slashes debate time on district court nominees from 30 hours to two.
The rapid pace of judicial confirmations is also due to an erosion of other Senate norms.
In 2013, Senate Democrats eliminated the filibuster against lower court and other executive branch nominees, which enabled them to clear the chamber with 51 rather than 60 votes. Republicans fired back in 2017, eliminating the filibuster against Supreme Court nominees.
The traditional “blue slip” process, a senatorial courtesy that in the past has enabled senators from a nominee’s home state to block advancement, has also weakened in recent years.
Earlier this month, Lawrence VanDyke — a conservative who served in the Trump administration — was confirmed to one of Nevada’s seats on the 9th U.S. Circuit Court of Appeals despite objections from both of the state senators.
Another judge who cleared the Senate over objections from his home state senators is Steven Menashi, who now sits on the 2nd U.S. Circuit Court of Appeals in New York. New York Democratic Sens. Chuck Schumer and Kirsten Gillibrand objected to him, accusing him of working at the U.S. Education Department to undermine protections for survivors of campus sexual assault, fund schools that discriminate against LGBTQ students and weaken protections for students who were defrauded by their institutions.
Senate Democrats have opposed numerous other nominees this year, including:
Chad Readler (6th Circuit), who as a Trump administration official filed a brief in support of GOP efforts to strike down the Affordable Care Act, including its protections for people with pre-existing conditions. Parts of the law were struck down in December.
Wendy Vitter (Eastern District Court of Louisiana), who has a history of advocating against abortion rights.
Sarah Pitlyk (Eastern District of Missouri), a staunch opponent of abortion, contraception and reproductive technologies such as in-vitro fertilization and surrogacy.
“All these nominees paint a picture,” said Dan Goldberg, legal director at the Alliance for Justice. The administration doesn’t want “fair-minded jurists,” he said. “They want right-wing ideologues who will achieve their policy goals.”
He and other progressive activists are working to curb the effort through organizing, media outreach, the publication of research and reports, research tools and awareness campaigns about the effect of judges on public life.
“We have to fix the courts,” Gordon said. “And we can’t do that unless voters understand the impact that these bad judges are having on them.”