Since his inauguration as president, Donald Trump has complained bitterly that the Democrats in the Senate have frustrated his administration by holding up "hundreds" of appointments to a wide variety of positions, including the federal bench. Like many of the Trump lies, mis-representations, and mis-statements, claims of intentional delays of nominees simply are not true. The facts are that the Trump White House is so dysfunctional that they have not been able to attract and complete background checks on candidates for the vacant available offices. From ambassadors in the foreign service, to high positions in the State Department, the EPA, Defense Department and many others, nominees simply are not flowing from the White House Appointments Office to the FBI for vetting. In fact, of some 640 key positions that require Senate confirmation, 216 - one-third of the total number - have NO NOMINEE. Nearly 30 of these are high-ranking Cabinet vacancies. These include the Commissioner of Social Security, Director of the Census, the Director of the ATF, Director of the National Parks, and the head of the Federal Highway Administration to mention a few. Among the State Department vacancies, we do not even have an Ambassador to South Korea! And, as evidenced by the recent revelations over such White House "appointees" as Jared Kushner, even those who have been selected cannot pass security muster.
Nevertheless, Trump often complains that his appointments are "being held up" by the Democrats. He notes that the Republicans did not do that to President Obama and that he is unfairly being "persecuted" by his political enemies. This is total nonsense. In fact, if anyone could be charged with dereliction of duty as it relates to confirming appointments, it is surely the Senate Republicans. From 2007 to 2012 there were 385 filibusters conducted by the Republicans - MORE THAN THE TOTAL NUMBER OF FILIBUSTERS IN THE 6+ DECADES FROM THE FIRST WORLD WAR TO RONALD REAGAN! In fact, prior to the Obama Presidency, 90% of judicial positions were filled. During the Obama years, however, just 50% of the judicial vacancies were filled. This is the world turned upside down... and, it did not happen by accident.
As I am certain that you will recall, when Justice Scalia passed, President Obama nominated a fully vetted and qualified candidate to fill that vacancy. He chose Judge Merrick Garland, a seasoned and centrist judge on the DC Court of Appeals. He was nominated on March 16, 2016. Almost immediately, Senate Majority leader Mitch McConnell announced that the Senate would not consider the Garland nomination although it was near a full year prior to the succeeding president taking office. The facts are, that in 2 centuries it has been standard practice for the Congress to consider confirmation of judicial nominees - whether it was a presidential election year or not. Of the 6 judges confirmed since 1900, 3 have been Republicans with the most recent (prior to Gorsuch) in an election year, Justice Kennedy - appointed by President Reagan and confirmed by a Democratic Senate in February of 1988. Since 1875 every Supreme Court nominee has received a hearing and/or a vote. The last 4 appointments averaged 75 days from nomination to confirmation. McConnell sat on the Garland nomination for more than 300 days. This didn't happen by accident. Nope! It was a part of an orchestrated plan to "pack" the federal bench with conservative judges that was hatched by Mitch McConnell - in the hope that they might win the presidency and have a clear field to fill these judicial vacancies that stood at 50% due to their filibusters and refusal to consider Obama appointments.
Circuit Courts got their moment in the press eye due to the numerous suits that were filed challenging the Trump Travel Bans of year one of his administration - for the most part siding with those who claimed that such bans were unconstitutional. Trump bristled at what he viewed as "interference" in his "executive authority." Steven Miller, a former Jeff Sessions Senate aide and now a Trump adviser on immigration issues, claimed that "President Trump's authority shall not be challenged!" in a TV interview on a Circuit Court determination that his immigration Executive orders were unconstitutional. Of course, in his private business life prior to becoming President, Trump has numerous run-ins with courts and judges. Issues with his various building projects, rental policies, casino revenue and taxes, contractor and vendor claims of non-payment, and, more recently, his Trump University case that resulted in a large cash settlement just prior to the 2016 election, demonstrated to Trump the important role that judges could play and did play in advancing or frustrating his objectives. The "Muslim Ban" cases, however, could not be settled with a monetary payment, like Stormy Daniels or the Trump University suit. These were clashes over POWER. And, Trump could not tolerate ANY challenges to his POWER. And, that would mean.... more appointments... more appointments.... and more loyalty oaths.... or, at least a common world view as it relates to Trump, for candidates seeking judicial appointments. Once Donald found that he couldn't simply "bully" or threaten the federal bench, it was time to implement the "McConnell Plan" and pack the federal bench. And, so the "shopping spree" began.
In an effort to re-shape the federal judiciary, Trump's folks helped get a record-breaking 12 appeal's court judges confirmed in his first year - four times as many as President Obama did in his first year. By mid-February 2018, Trump has nominated 80 federal judges - and he is just getting started! Given that McConnell blocked many Obama nominees and stockpiled judicial vacancies, Trump has 139 open seats on the bench to fill - a task that the right-wing considers the "most important thing" that they could do. In general, these nominees are sympathetic to gun rights, religious freedom in free speech, are skeptical regarding abortion rights as well as workplace discrimination and environmental protections. After Gorsuch, their goal was to "fill up the lower courts." With lifetime appointments and very few decisions that will ever make it to the Supreme Court, the plan is to change America for generations.
White House Counsel Don McGahn, the quarterback of this effort, once described this class of nominees for the bench as "the second list... and too hot for prime time... the kind that make some people nervous." He was right about that..... Judge Leonard Grasz, confirmed to the 8th Circuit Court in December, described Roe v. Wade as "moral bankruptcy." Judge John Bush, appointed to the 6th Circuit in last July, compared abortion to "slavery" in his blog. While it remains to be seen just how much damage these judicial appointments actually do to the social and legal glue that holds our nation together, it seems almost certain that the Trump years - however many they may be - will continue to inflict considerable damage to our democracy and the freedoms and liberties to which we have become accustomed over the decades of the post World War II years. Hang on folks.... it's going to be one hell of a ride!
STAND UP! SPEAK OUT! MARCH ON!
RESIST! PERSIST! INSIST! Bobby J
