Wednesday’s confirmation hearing for three of President Donald Trump’s judicial nominees may lack the intrigue of James Comey’s blockbuster testimony, but for anyone who cares about the integrity and independence of America’s courts, the stakes could hardly be higher. The hearing will illustrate how Trump is advancing an anti-civil rights agenda—not just through executive orders and agency actions, but by attempting to alter the makeup of the judiciary.
Trump’s initial nominees to fill more than 120 lower court vacancies—many of which exist only because the Republican Senate refused to act on the qualified nominations put forth by President Barack Obama—foretell a Trump-stacked judiciary that would clear the way for constitutionally suspect executive actions, shield corporate wrongdoers from accountability, and imperil the civil rights of all Americans.
If this sounds like hyperbole, witness Trump’s record thus far. There’s the unconstitutional, anti-Muslim “travel ban.” There’s the sham “election-integrity” commission rooted in Trump’s ludicrous claims of epidemic-level voter fraud. There are the deep budget cuts to civil rights offices. There’s the roster of appointed officials, like Attorney General Jeff Sessions and Secretary of Education Betsy DeVos, who do not support the very civil-rights laws they are obligated to enforce—and under whose leadership the administration withdrew guidance that protected transgender students, curtailed the use of consent decrees to end discriminatory policing, revived the failed and racist “war on drugs” and dropped a legal challenge to Texas’s discriminatory voter ID law.
These actions have real consequences, but for these policies to truly stick, Trump must also capture the courts—which so far have provided the most reliable check on his administration, repeatedly upholding the rule of law. The courts have repeatedly struck down Trump’s travel ban, found Texas’ voter ID law unconstitutional and rejected the Justice Department’s request to delay implementation of an already agreed-upon consent decree in Baltimore. Courts are often the difference between Trump’s preferences becoming policy or not.
The president seems to recognize as much, and so at the same time that he ridicules the judiciary for thwarting his proposals, he is working to reshape it. So far, he has named 16 nominees to the federal district and circuit courts—a group pulled almost entirely from the membership rolls of the conservative Federalist Society. On Wednesday, three of those nominees will appear before the U.S. Senate: Kevin Newsom, an 11th Circuit nominee from Alabama; John Bush, a 6th Circuit nominee from Kentucky; and Damien Schiff, a nominee for the federal Court of Claims. Together, they evince a deep hostility toward civil rights.
In 2000, Newsom wrote a law review article in which he equated the rationale of Roe v. Wade, the landmark ruling that affirmed abortion rights, to Dred Scott, the infamous 1857 decision upholding slavery. As Alabama’s solicitor general, he spent much of his time defending the state’s ability to execute people, and in 2005, he expressed regret at the Supreme Court’s ruling that it is unconstitutional to execute juveniles. He also defended, both in court and the press, Alabama’s policy, nearly unique among the states, to not provide legal counsel to death-row prisoners seeking post-conviction relief. When prisoners challenged the policy, Newsom ridiculed them for painting a “gloom and doom” picture of accessing legal services on death row.
Bush is shocking in his blatant disdain for equal rights and animus toward racial and other minorities. While blogging under a pseudonym in 2008, Bush invoked Dr. Martin Luther King Jr. to attack women’s reproductive rights. In a post titled “The Legacy from Dr. King’s Dream That Liberals Ignore,” Bush joined Newsom in comparing Dred Scott to Roe (both “relied on similar reasoning and activist justices”), and wrote that “slavery and abortion” are the “two greatest tragedies in our country.” In his Senate questionnaire, he dismissively referred to the brutal 1993 beating of Rodney King by Los Angeles police officers as a “police encounter.” In another blog post, he brushed aside the discriminatory effects of voter ID laws. Bush has also said that a landmark Supreme Court ruling protecting the freedom of the press was wrongly decided, a view disturbingly convenient for a president who incessantly attacks the media. Perhaps most troubling about Bush, though, is what he hasn’t voiced: In forms filed with the U.S. Senate, Bush failed to disclose—as required by Senate Judiciary Committee rules—that a Louisville social club to which he belongs had a long history of excluding African-Americans, women and Jews.
Of the three nominees, Schiff may be the most extreme. He has already received attention for calling Supreme Court Justice Anthony Kennedy a “judicial prostitute”; said he “strongly disagree[s]” with the Supreme Court’s decision in Lawrence v. Texas, which struck down statutes criminalizing sodomy; and criticized a school district for teaching that “homosexual families are the moral equivalent of heterosexual families,” arguing that it remains an open question. Shockingly, in May 2009, Schiff wrote that, for the same reason, he would have objected “to an anti-racism curriculum being taught in 1950s Arkansas.” Not to be outdone, Schiff provided his own take on Dred Scott—saying that the court’s dead-letter affirmation of slavery is no different from efforts to remedy segregation and increase diversity. In a 2011 law review article, Schiff said that Grutter v. Bollinger, which upheld race-conscious college admissions programs to further student diversity, repeated the same mistakes of the Supreme Court’s most infamous decisions, including Dred Scott, Plessy v. Ferguson, and Korematsu.
Individually, each nominee is concerning. Taken together, Trump’s judicial nominees represent not only a sharp turn out of the mainstream but a major setback for judicial diversity.
In three separate instances, Trump has named a white nominee to replace an African-American Obama nominee the Senate failed to confirm. This is true even in those positions with an especially fraught racial history. Judge Abdul Kallon, the Obama nominee who would have been the first black judge from Alabama on the 11th Circuit, was replaced by a white man. So was Rebecca Haywood, who would have been the first African-American woman on the 3rd Circuit. And in a blow to gender diversity, Obama’s nominee to the 8th Circuit, who would have been the first woman from North Dakota on any federal court, was also replaced by a white male.
The lack of diversity extends to professional backgrounds of Trump’s picks: Almost all of his nominees have backgrounds representing the most powerful and wealthy litigants. At least 15 of his 16 lower court nominees have been prosecutors, corporate lawyers or both; none has advocated for civil rights or fought for the rights of indigent criminal defendants as public defenders. Infusing the federal bench with a one-sided perspective hardly inspires public confidence that civil-rights claims will get a fair and impartial hearing.
Under normal circumstances, judicial confirmations may not grab the headlines or provide the drama of questions about Oval Office meetings between the president and the FBI director—and they are unlikely to inspire watch parties and drink specials. But these are not normal times, and these are not ordinary nominees. The American people should be paying attention. The future of civil rights in America is at stake.