SCOTUS Isn't the Only Court We Should Be Worried About in Trump's America
Well, here we are: facing down the inauguration of hate incarnate. And while it’s hard to pick one single, overriding fear when an incoming administration has explicitly expressed a desire to reduce the rights and safety of all marginalized people living in this country, I find myself thinking most often about the judiciary. Our court system, after all, sets laws that shape the lives of millions.
When it comes to the judiciary and the power it wields, America tends to focus its attention on the Supreme Courtâ€Š—â€Šand understandably so. SCOTUS justices have been the backstop, the last resort for litigation, since Marbury v. Madison in 1803, when the justices granted themselves the right to strike down laws. So, for 200 years, we have relied on them to protect us and enforce the rights ensconced in the Constitution.
If it falls under a social justice heading, federal judiciary folks can rule on it.
But those nine men and women are not the only ones in robes ruling on our rights. Excluding SCOTUS, there are a total of 1,760 federal justices who hear cases concerning everything from state gun control laws to abortion restrictions to voting laws to anti-discrimination measures to immigrant issues to worker rights. Basically, if it falls under a social justice heading, federal judiciary folks can rule on it.
Collectively, these judges decide on exponentially more cases than the Supreme Court. As The Leadership Conference on Civil and Human Rightsexplains:
“While the Supreme Court typically hears fewer than 100 cases a year, the federal courts below the Supreme Court decide tens of thousands of cases a year. In effect, many lower court rulings are the final word on our rights, making the selection of these judges ‘who are appointed for life’ extremely important to all.”
Of these enormously influential federal justices, 857 are appointed by the president, and the other 903 are appointed by people selected by the president.
In other words, when it comes to Trump’s bigoted influence on the judiciary, it’s not just SCOTUS we should be concerned about.
A Trump-Pence administration filling a record number of federal court vacancies is terrifyingâ€Š—â€Šand will almost certainly happen.
Thanks to Republican intransigence in the Senateâ€Š—â€Šremember then Minority Leader Mitch McConnell’s 2010 promise to block everything?â€Š—â€ŠPresident-elect Trump is set to inherit over 100 judicial vacancies this week. If that sounds like A LOT, it’s because it’s twice the number Obama inherited from Bush who, in turn, inherited 80 from Clinton.
In his pre-Tea Party attempt to build a bipartisan coalition, Obama was slow to nominate (Bush hit the ground running) and eventually faced an almost complete refusal to confirm in the Senate. Bush, on the other hand, enjoyed bipartisan support during his administration with a 97% success rate for district nominees, the majority of whom were confirmed faster than Obama’s nominees.
In 2013, Obama himself addressed the historic intransigence by noting that, “Time and again, congressional Republicans cynically used Senate rules and procedures to delay and even block qualified nominees from coming to a full vote.” As a result, he said, “my judicial nominees have waited three times longer to receive confirmation votes than those of my Republican predecessor.”
Three times longer. And it got worse after Republicans captured the Senate in 2015. Trump, on the other hand, could conceivably be handed a rubber stamp for his nominees with hearings and confirmation votes being mere formalities (this list provides a comprehensive look at the confirmation process for judgeships).
Senate democrats in the judiciary committeeâ€Š—â€Šwhere nominees get hearings that are similar to those for the Cabinet, but less attended with fewer witnesses testifyingâ€Š—â€Šwon’t be able to refuse to consider Trump nominees the way Republicans refused to hear Obama’s, because they are the minority. We can expect Trump’s lower court justices to slide on through to the full Senate for a vote, where only a simple majority of 51 votes is needed to confirm.
And while I have very little confidence that Trump knows anything about this process, as he is wholly and admittedly unqualified for the office to which he has been elected, the GOP establishment will ensure that he has a list of nominees ready to stack the courts in their favorâ€Š—â€Šcreating a shift that could last decades (nearly all federal judgeships are lifetime appointments).
There’s some opportunity for a progressive defense against far-right nominees, but not much. Even if we could push democratic leadership to adopt a GOP-style refusal to confirm starting right now, they are likely to lose that power in two years. Should just eight of the 23 senate democrats up for reelection in 2018 lose (out of 34 total seats being defended in two years), Republicans would have a filibuster-proof majority.
So where does that leave things?
The biggest concernâ€Š—â€Šfor those who would get overwhelmed trying to follow thousands of cases in all 13 judicial circuitsâ€Š—â€Šis the D.C. Circuit Court of Appeals. (Judicial circuits divide the work load into 12 geographic regions, plus the Court of Appeals for the Federal Circuit, which hears specialized cases like those involving patent law.)
I’ll cede the floor to our Constitutional law professor president on why the D.C. court is particularly important:
“The D.C. Circuit is known as the second highest court in the country, and there’s a good reason for that. The judges on the D.C. Circuit routinely have the final say on a broad range of cases involving everything from national security to environmental policy; from questions of campaign finance to workers’ rights. In other words, the court’s decisions impact almost every aspect of our lives.”
So, should a new administration try to, you know, overreach orâ€Š—â€Šjust as an exampleâ€Š—â€Šappoint climate deniers to the Environmental Protection Agency, Department of the Interior, Department of Energy, Department of State, Department of Defense, Department of Health and Human Services, Department of Commerce, and Department of Transportation, watchdog groups and human rights orgs would be appealing to the D.C. Circuit.
It’s imperative that the justices seated there care about human rights as well as the Constitution; I have zero confidence that either will be much cared for by Trump appointees.
I can’t make this better for you. I wish I could.
One reason I’ve long been a much maligned “single-issue voter” once the general election candidates are chosen is that I’ve been afraid that one extremist and/or incompetent administration could set the course for our courtsâ€Š—â€Šand therefore our countryâ€Š—â€Šfor the rest of my life and possibly longer. Left unchallenged, policies already promised by Trump-Pence-Ryan will end lives; people are afraid for good reason.
We are going to have to make an unprecedented amount of what Civil Rights icon Rep. John Lewis (D-GA) calls “good trouble.”
“This is the way another generation did it,” Lewis told labor writer and Necessary Trouble: Americans in Revolt author Sarah Jaffe, “and you too can follow that path, studying the way of peace, love and nonviolence, and finding a way to get in the way. Finding a way to get in trouble, good trouble, necessary trouble.”
Left unchallenged, policies already promised by Trump-Pence-Ryan will end lives; people are afraid for good reason.
We couldn’t ask for a more fitting juxtaposition than Trump taking the oath of office the day before the 44th anniversary of one of the Court’s most famous decisions, Roe v. Wade, which decriminalized abortion nationwide. Trump has promised to overturn Roeâ€Š—â€Ša tricky, but absolutely doable undertaking with a majority of Congress being openly anti-abortion (and largely anti-reproductive health care altogether).
Rep. Barbara Lee (D-CA) told me recently that a hostile administration is no excuse to tap outâ€Š—â€Šthat we must “bring the ‘street heat.” So as we do this important work of acknowledging the crisis ahead and preparing to do harm reduction over the next few years, we must continue to let our legislators know that we are watching by calling them, emailing them, and showing up at their local events like town halls and community meetings.
After all, even in a broken system, they need us in order to keep their jobs. We should remind them of this as often as we can in whatever way we can with whatever resources we have available. You can find and send a message to your representative in the House HERE (you have one of them) and your Senators HERE (you have two of them). And you can track judicial nominations, related news, where the vacancies are, etc. at the appropriately named JudicialNominations.org.
I am extremely understanding of those with anxieties and/or disabilities that make direct action and even making a phone call a challenge. (I only answer my phone by appointment, and then only reluctantly.) Calls, for those who can make them, need only take 15–30 seconds. A staffer will answer (or you’ll get a voicemail box that gives you a chance to re-record if you want); just tell them that you’re a constituent who wants to register their support/opposition for X issue/confirmation/etc. They’ll ask for your city and/or state and confirm that you’re a constituent. Ask them, for example, to oppose a Trump judicial nomineeâ€Š—â€Šand to do so publicly (that’s super important!). And then you’re done!
Asking our elected officials to publicly oppose Trump policies and appointments is our right and duty.
Having a script can reduce anxiety, as can knowing how short the call will be. I promise, staffers don’t have time for a lengthy chat.
Asking our elected officials to publicly oppose Trump policies and appointments is our right and duty. All representatives have Twitter handles, so if phone calls are not something you have the bandwidth for, tweet at them! Also, talk to anyone who will listen about why this matters. It may be unsatisfying to already look ahead to 2018 and 2020, but we don’t change public opinion or motivation overnight. If we want to stymie this impending crisis as soon as possible, we need to get chatty NOW.
So, join me in being as loud as you canâ€Š—â€Šnow and going forward.