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.