Discord & Dissension – Part IX – The Courts

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Now that Super Tuesday is behind us, and we’re down to a two-person race between Bernie Sanders and Joe Biden, it’s time to start thinking about what it’s going to take to get out the vote. If yesterday is any indication, with massive turnout all around the country, it’s apparent that defeating Donald Trump is on everybody’s mind. But it can’t be the only reason.

Jill and I began our project several weeks ago, and it’s still evolving. But, we’ve indeed entered a new phase in the campaign to defeat Donald Trump in 2020. And today, with Part 9 in our series, I’m going to discuss a subject that rarely gets covered, especially in Democratic circles: The Courts.

And, in my view, it’s time for both of our Democratic candidates to start addressing how important it’s going to be to not only win the presidency but also take back the Senate. Because if we don’t, there’s a real chance democracy will wither and die on the vine. Look what Trump’s done already-can we afford to see what he’ll do with another four years?

If he wins again, and the Senate stays in Republican hands, there’s a high probability that Trump will have the chance to make the Supreme Court a substantial 7-2 majority in favor of the conservatives. Justice Ruth Bader Ginsburg is 86 years old; Justice Steven Breyer is 81. The chance that one or both lasts another four years is questionable, at best.

But, it’s not just the Supreme Court we should worry about. While Trump has failed on so many fronts during his first term, the one area where he’s had phenomenal success is in getting judges confirmed throughout the federal system. And these aren’t just your average middle of the road judges.

Indeed, there’s a lifeline of candidates submitted to the president and Senate Majority Leader Mitch McConnell from none other than ultra-conservative think tanks The Federalist Society and The Heritage Foundation—both funded by the likes of Charles Koch and other millionaires and billionaires. Not surprisingly, every conservative on the Supreme Court are members of The Federalist Society.

We see a rapid transformation of the courts right before our eyes. And it’s a constant refrain from Trump at most of his rallies. Rarely does he miss the opportunity to brag about how he’s reshaping the court. It’s become a rallying cry for his base. Win or lose in 2020, Trump’s legacy is tied to the sheer volume of right-wing judges he’s appointed.

The reason, of course, is that most of these judges are so-called Article 111 federal judges, which means a lifetime appointment. And the think tanks aren’t sending over a bunch of old geezers. While the average age of Barrack Obama’s appointed judges was close to 60 years old, the average age for Trump’s judges is 50.

By The Numbers

So how does Trump measure up to recent presidents as far as how many judges he’s had confirmed?

*As of now, Trump has nominated a total of 249 individuals to judgeships; 192 confirmed. Currently, there are 78 vacancies—37 of which are pending approval.

*For comparison purposes, on a per-year basis, Obama averaged nearly 42 judges confirmed over his 8-year term; George W. Bush averaged almost 43. Trump, in his 3.5 years in office, is approaching a 55 per-year clip in the number of judges appointed.

*The United States Court of Appeals is usually the last court to decide cases because the Supreme Court only agrees to hear about 1% overall. Here, Trump is far ahead of his predecessors. At the same point in their terms, Bush had appointed 31 Appeals Court judges—Obama 26. To date, Trump has appointed 50.

Many of Trump’s nominees never made it through the confirmation process because of questions over ideology or lack of qualifications. A few never even tried a case in a court of law. That said, most are getting through the process. McConnell made this possible by changing some of the parliamentary procedures of the Senate and eliminating the filibuster.

Once again, we see over and over how Republicans have placed a high priority on approving young, conservative, and mostly white male judges. The Democrats are powerless to prevent it—until November 3, 2020, that is.

But Democrats, in general, rarely rate the courts as being an important issue when selecting a candidate. We must change course because the issues that are important to the Party, like health care, the environment, and gun safety, are currently under attack in the courts. Voting rights, civil rights, and reproductive rights are also in jeopardy.

If you need proof, here are just some of the cases the Supreme Court is either hearing arguments for, or are awaiting decisions on this year:

*LGBTQ employment discrimination. Does Title Vll of the Civil Rights Act, which bars discrimination based on sex, include sexual orientation and gender identity? Decision pending

*Future of DACA. Can the Trump administration end the Deferred Action for Childhood Arrivals program begun in 2012 under President Obama by declaring it unlawful? Decision pending

*Gun owner’s rights. Does a New York City ordinance, since rescinded, that blocks gun owners from transporting weapons beyond city limits violate the Second Amendment? Decision pending

*Affordable Care Act. Can Congress refuse to pay insurance companies billions of dollars owed under provisions of the Affordable Care Act? Decision pending

*Political corruption. Can federal prosecutors investigating New Jersey’s “Bridgegate” scandal use criminal fraud statutes to prosecute dishonest political conduct? Decision pending

*Religious school funding. Does a state’s ban on the use of public school funds for religious tuition violate the Constitution’s religion clauses? Decision pending

*Separation of powers. Does the structure of the CFPB (Consumer Financial Protection Bureau), with a single director who can only be fired for specific reasons, violate the separation of powers? Oral argument: March 3, 2020

*Abortion restrictions. Does Louisiana’s requirement that abortion providers have admitting privileges at nearby hospitals constitute an undue burden on the right to abortion? Oral argument: March 4, 2020

*Separation of powers. Is President Trump immune under the Constitution from a grand jury subpoena seeking nearly ten years of financial records from his accounting firm? Oral argument: March 31, 2020

*Separation of powers. Do congressional committees have constitutional and statutory authority to issue subpoenas seeking President Trump’s financial records from creditors, banks, and accounting firms? Oral argument: March 31, 2020

*Faithless electors. Must members of the Electoral College vote for the winning candidates for presidents in their states? Oral argument: April 28, 2020

*Contraceptives mandate. Can the Trump administration let employers and universities with religious or moral objections deny women insurance coverage for contraceptives? Oral argument: April 29, 2020

As you can see, the cases represent the whole spectrum of social and political division in our country. And the decisions will have long-lasting ramifications, whether you and I care about them or not. President Trump, himself, looms large over many of these decisions, including those that deal with him individually, such as his tax returns and whether he can be compelled to release them.

In the sporting world, sometimes the best offenses rely on a good defense. This November 3, we’ll have a real chance to make that a reality. Yes, defeating Trump is paramount. But taking back the Senate is equally essential. Do we want to trust Mitch McConnell to allow a Democratic president to nominate a Supreme Court Justice, and bring it to the floor for a vote? Of course not.

So moving forward, let’s push our Democratic nominee, whoever it may be, to start highlighting the importance of the federal judiciary. Every stump speech should have a line or two mentioning it. The Republicans have outmaneuvered the Democrats on this issue, and now it’s time to reverse the trend.

I realize it’s not a sexy issue with voters. Perhaps with Trump taking the wrecking ball to an independent judiciary, as he’s been doing since day one, will compel the electorate to take a stand. We must never underestimate the power our judges have in society. If it’s progressive change you want, we can’t assume the current makeup of the Supreme Court is going to have our backs. We, the people, can change the trajectory.

Do you think Citizens United was a wrong ruling? How about gutting the Voting Rights Act? Was failing to put an end to gerrymandering the right way to go? Well, I’ve got news for you. There’s more where that came from this court. We simply cannot afford any scenario that flips the court to a 6-3 or 7-2 conservative majority. And we cannot allow more right-wing ideologues to be nominated and confirmed throughout the rest of the federal court system.

There are so many issues that need our attention going forward. I’d simply ask that you please make sure never to forget the implications of what another four years of Trump, or a Republican majority Senate will do to our court system. They’ve left their indelible mark already. Let’s make sure they don’t ruin it to the point of no return.

Previous articles in this series can be viewed in our table of contents.

17 comments

  1. What if the court were a 7/2 in favor of progressives, would you be voicing concern about it’s makeup? To be fair, the court shouldn’t be unbalanced in either direction. I think it’s a valid question. What do you say?

    Liked by 1 person

    1. Great question. And I don’t know the answer to it because it’s had a conservative majority for so long I don’t remember what it was like the other way. But, my concern is that the 5 who are on the conservative side now are as far to the right as you can get, in my view. Before, at least we had Kennedy who seemed fair when it came to some issues. But now, I’m not so sure. Time and again, these guys have ruled so far toward corporate, religious, and wealthy interests, I do not have confidence they will do the right thing for the American people. It’s so damn politicized now.
      When Mitch McConnell held up Obama’s nominee, Merrick Garland, that spoke volumes as to how important they view putting their own far-right idealogical judges on the court.
      I suppose in my perfect world as to how it should be, 9 moderates would be about as fair as we could get. But, how can we ever get to that point? It ain’t going to happen. So, the best I can hope for is keeping the court 5-4. And that would mean a Dem winning the presidency and the Senate and House both being in Dem control. And who knows, if we keep that scenario for a couple of terms, one of the conservatives might retire, or keel over. So, we shall see Sklawlor. You always make me think. I appreciate that!

      Liked by 1 person

  2. Reblogged this on Filosofa's Word and commented:
    Today, Jeff has outdone himself on Part IX of our project, Discord & Dissension — The Courts. Many people don’t give much thought to the courts as a rule, but Jeff shows us just why it is so very important to consider the impact a president can have on the Judiciary. Thanks Jeff … this one is a real eye-opener!

    Liked by 1 person

    1. Thank you partner!! The Dems were asleep at the wheel in 2010 when the R’s started their gerrymandering rampage. Between that, and an emphasis on ideological right-wing judges, the Dems are playing from behind again. This is no time for playing nice. Because the other side does no such thing. We’ve got so much work to do my friend!!

      Liked by 1 person

      1. Yes indeed we’ve got our work cut out for us. And, this may be our last chance, so it’s important we get it right! You really did great with this post … I hope it will make people see just how crucial this is.

        Liked by 1 person

      2. Me too Jill. It’s so important, yet doesn’t get the press it deserves. One thing for sure, Republican always think long-term. Dems need to step up to the plate. I do like the fact that Obama/Eric Holder are spearheading an effort to end gerrymandering. That’s the kind of stuff we need going forward. The courts are equally, if not even more important.

        Liked by 1 person

  3. Great read and great summary of issues that will have tremendous effects on us if old Trumpy wins. Right now I am a Biden fan as are most of my friends. You all are welcome to come for the DNC in Milwaukee. In lieu of our recent mass shooting and “the” virus it will be interesting to see how it plans out. Keep up these great blogs!

    Liked by 2 people

    1. Thanks Sherri! Getting rid of HIM is THE top priority. Hands down. And I, like most people, think that Joe is the best bet to do that. He’s never been my top choice. But, it doesn’t matter. We gotta do what we gotta do!!

      Like

    1. Sure is Jim. And it’s long lasting. He won the election under ‘questionable’ circumstances, which makes it even harder to swallow. In my view, he’s always been an illegitimate president. His actions the last 3 plus years has done nothing to change that feeling.

      Like

  4. This overview is extremely well done and essential reading, Jeff. I emphatically agree. This is trump’s legacy, and it will haunt us for decades.
    We must ensure that the Democratic nominees bring this issue front and center—frequently.

    I would add to your response to the comment about partisanship that we have just seen a rather damning example from the Chief Justice. When trump said that Justices Ginsburg and Sotomayor should recuse themselves because they’re biased against him, Roberts was silent. But when Sen Schumer made an impolitic remark about Justices Kavanaugh and Gorsuch, Roberts’ criticism was full-throated. Hardly even-handed!

    Liked by 1 person

    1. Thanks Annie. Yes, I agree with you about the Schumer remarks. In my eyes, he’s got nothing to apologize for. Roberts sits silently for Trump’s entire presidency while the same branch of government he resides in is under attack…every day by this man. It does not bode well for all of these very important decisions in the coming months, that SCOTUS will be making. I have no confidence in the independence of the Roberts court. I hope they prove me wrong.

      Like

  5. IF (A GREAT BIG IF) the dems canwin all three branches of gov’t in 2020, the first thing they should do is rescind all judgeships granted by Trump. Two can play that game. Make l8fetime appts illegal, and change the way justice works. I mean, it is not working as intended right now, so first chance they get to make things right (not as in right wing!). For every republican leaning judgeship a democratic judge myst also be appointed, once the sides are evenly matched. AND FURTHER, any judgemaking political statements in a court oflaw should be immediately fired, no matter which side. Courts are supposed to be politically neutral. When was the last time that statement was true, if ever!

    Liked by 2 people

    1. I cannot disagree with anything you said rawgod. I like that idea. The lifetime appointment portion is a real flaw in our democracy in my view. That’s right, this isn’t the time for playing nice. How nice would it be if Mitch McConnell lost his race in KY? I feel it’s just as important to rid ourselves of that guy. He’s caused so much damage…long-term..it’s going to take an all hands on deck approach. I know it’s not likely, but who knows?

      Like

  6. And there was I believing that justice was an absolute – and absolutely impartial. Isn’t there some kind of oath members of the legal profession are supposed to take that commits them to impartiality and indifference to political considerations?

    Liked by 1 person

    1. There sure is Frank. Kind of like the Senate taking the same kind of oath during impeachment, right? And we saw how that turned out. Corruption is everywhere it seems. There was a time where the Supreme Court was always held in high regard by the American people. Slowly but surely, that belief is eroding. The stench and scourge of money certainly plays a big part in all of this. We’ve got to get a handle on that. It might be too late, though.

      Like

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