Senate Democrats backed away from an effort to slow-walk four of Donald Trump’s judicial nominees, the Washington Examiner reports, because they preferred not to work over the weekend. Their decision means that, likely by the end of Thursday, four Trump nominees will be installed on powerful appeals courts — at least three of whom are likely to be extraordinarily conservative judges.
In fairness to the Senate Democrats, a continued fight on these judges was likely to only delay the inevitable for a few days at most. So far, Senate Republicans have shown no appetite for blocking Trump’s judicial nominees, no matter what a particular nominee’s sins may be. Last July, for example, every single Republican senator but one voted to confirm attorney and right-wing blogger John Bush to the United States Court of Appeals for the Sixth Circuit. The one Republican senator who did not vote, Sen. John McCain (R-AZ) was at home battling cancer.
Bush, among other things, compared abortion to slavery. He implied that Republican voters should use deadly force against Democrats who commit minor crimes against their property. And he even wrote a blog post which implied that then-Sen. Barack Obama may have been responsible for the Kenyan government’s decision to jail a reporter from a birther news site.
Yet, again, every single Republican senator who was present for the vote supported Bush’s confirmation.
So it was unlikely that, by invoking Senate rules that would have allowed them to delay some confirmation votes into the weekend, Senate Democrats would have convinced enough of their Republican colleagues to vote against a nominee for it to make a difference. “We did a calculation,” Senate Democratic Whip Dick Durbin told the Examiner. “We could stay through the weekend and by Monday have the same result we are going to achieve. There was nothing to be gained by staying.”
Democrats’ battle over the four nominees at issue this week — Amy Coney Barrett, Joan Larsen, Allison Eid, and Stephanos Bibas — was also hobbled by another factor. Republicans, or at least, key Republicans, simply have much more access to information about these nominees than their opponents do.
More so than past presidents, Trump relies on outside conservative groups — and especially the Federalist Society — to help him identify judicial nominees. Many of his nominees became active in the Federalist Society, a kind of bar association for conservative lawyers, when they were just starting law school. They are often frequent attendees at the Federalist Society’s social gatherings, leaders in its chapters, and speakers at its events.
So, while there is a conspiratorial aspect to the Federalist Society, the organization is often able to identify ideologically reliable nominees because those nominees are in the same social circles as the Society’s leaders. If Trump named one of your close friends to a federal judgeship, you’d probably know more about their political views then any member of the Senate Democratic caucus too.
Barrett, Larsen, Eid, and Bibas, moreover, were not nominees in the model of Judge Bush — that is, they didn’t spend years writing their most controversial opinions on a blog where anyone could read them. I once debated Judge Barrett, for example, at a Washington and Lee Law School event on the value of originalism as a method of interpreting the Constitution. I found her quite personable, but she generally made debate points at such a high level of vagueness that it was hard to find much to disagree with.
She behaved, in other words, as the very model of an up-and-coming legal scholar who, if she played her cards right and didn’t piss the wrong people off, was in line to be a judge someday. She didn’t make the kind of public statements that could be used against her in a confirmation hearing.
Similar things can be said about some of the other nominees getting votes this week. A liberal organization called the Alliance for Justice regularly publishes reports on individual judicial nominees. Their reports on the four nominees are heavy on descriptors like “troubling,” “rigid, ultraconservative partisan ideology,” “antithetical to the fair and impartial functioning of the federal judiciary,” and “extreme,” but light on the sort of evidence that is likely to convince a wavering senator to vote against someone nominated by a president of their own party.
AFJ’s lead argument against Larsen, for example, rests on a cagily worded op-ed she published more than a decade ago about President George W. Bush’s use of signing statements. Their factsheet on Eid suggests that Justice Eid has not opined on many of the hot-button constitutional issues that could come before her on the Tenth Circuit, even though she’s been a state supreme court justice for more than a decade (though her record on issues on which she has opined is quite conservative).
Moreover, the AFJ reports at times rely on very old evidence to damn a nominee. AFJ leaned heavily, for example, on a law review article Judge Barrett co-authored while she was still a law student, entitled “Catholic Judges in Capital Cases.” In it, Barrett and her co-author write that Catholic judges may need to recuse themselves from some cases where the teachings of their Catholic faith conflict with the demands of the law. Barrett has since disavowed the arguments she made in this article.
Barrett is herself a devout Catholic, so her article raised legitimate questions about how she would handle a case where the law is in tension with Catholic teachings. But any legitimate questions that could have been raised about Barrett’s record were dashed aside after Sen. Dianne Feinstein’s (D-CA) ham-handed approach to the nominee. “The dogma lives loudly within you,” Feinstein told the Catholic nominee, provoking howls of outrage from Barrett’s supporters.
Barrett will now almost certainly reappear over and over again in conservative persecution narratives, each time trotted out as a martyr tormented for her faith.
My point in rehashing some of this history isn’t to endorse any of Trump’s judges, or even to imply that Democrats are wrong to fear Trump’s nominees. Eid is a former law clerk to Justice Clarence Thomas, and Thomas is known to go to great lengths to find clerks who share his extraordinarily conservative views — he once quipped hiring a clerk who harbors deep disagreements is “like trying to train a pig. It wastes your time, and it aggravates the pig.” Barrett and Larsen are both former clerks to conservative Justice Antonin Scalia, and the evidence in their record suggest that they will, indeed, be extraordinarily conservative judges.
Rather, my point is that the people picking Trump’s judges know a great deal about them, what their core values are, and how loyal they are to the Republican cause. The people opposing those judges, by contrast, can often only pick at scraps doled out by nominees who’ve spent much of their careers avoiding public statements on controversial topics. And even when a nominee does emerge with deeply ideological or even goofy views, as was the case with Bush, Senate Republicans have shown no interest in interrogating those views.
This is a recipe for an extraordinarily conservative judiciary. And, because so many of Trump’s nominees have not behaved like Bush, we won’t know the full implications of their ideology until they’ve spent many years on the bench.