Senate Majority Leader Mitch McConnell aboard an elevator at the Capitol in Washington on Nov. 19, 2019.Samuel Corum/The New York Times News Service
Amid intense focus on impeachment and year-end deals on spending and trade, the Senate hurtled this week toward a less-heralded accomplishment: confirming another batch of conservative judges.
Senators confirmed 13 of President Donald Trump’s judicial nominees, bringing to 102 the number of federal judges approved this year – more than twice the annual average over the past three decades.
The steady transformation of the courts reflects the single-minded focus of Senate Majority Leader Mitch McConnell, who has vowed to “leave no vacancy behind” as he and Trump seek to tilt the judicial branch to the right.
The judicial confirmations include 20 additions to the U.S. Court of Appeals, bringing to 50 the number of federal appeals court judges confirmed in Trump’s first three years in office. The relentless pace means that more than a quarter of all federal appeals court judges were nominated by Trump and confirmed by the Republican-controlled Senate.
“While all eyes were understandably on impeachment, Mitch McConnell’s conveyor belt churned out a shocking number of judges this week in what remains the most underrated story of the Trump era,” said Christopher Kang, chief counsel at Demand Justice, a liberal advocacy group.
“Trump’s hijacking of our judiciary will be his most enduring legacy, and it will continue to threaten everything progressives care about long after he leaves office,” Kang said.
McConnell, a Kentucky Republican, insists the stepped-up pace of confirmations is not a partisan achievement.
“It is not one party or the other that benefits when our federal courts consist of men and women who understand that a judge’s job is to follow the law, not to make the law,” he said on the Senate floor last week.
“The entire country benefits from that. Our constitutional system benefits from that. If judges applying our laws and our Constitution as they’re written strikes anybody as a threat to their particular agenda, it’s their agenda that needs to change, not the judiciary that the framers intended,” McConnell said.
Last week, the Senate confirmed two conservative lawyers to posts on a California-based appeals court that Trump has tagged as a liberal bastion.
Lawrence VanDyke, a deputy assistant attorney general from Nevada, and Patrick Bumatay, a federal prosecutor from southern California, were approved in separate votes to the 9th U.S. Circuit Court of Appeals. The San Francisco-based court, which covers a wide swath of Western states from Alaska to Arizona, handles cases of high interest to the Trump administration, such as immigration and detention.
Trump, who has called the 9th Circuit a “big thorn in our side,” has now appointed 10 judges to the sprawling court, one of the country’s largest and most influential.
One unspoken factor propelling Republicans forward is the calendar. With no guarantee that a Republican will be in the White House come January 2021, there is an emphasis on filling vacancies now.
McConnell “is moving nominees as quickly as he can (through the Senate), just in case Trump loses in 2020,” said Carl Tobias, a law professor at the University of Richmond. Under Trump and McConnell, “Republicans have packed the appeals courts with very conservative judges,” with a particular emphasis on nominees under the age of 50, Tobias said.
Mike Davis, a former Senate Judiciary counsel who runs a conservative group promoting judicial nominees, predicted Trump will win another term. But he said Republicans can’t take that outcome for granted.
“Republican-appointed federal judges who don’t want to stay on the bench through at least January 2029 should consider retirement immediately as we have a very limited window before the election to replace them,” Davis said.
McConnell’s ability to push through judges was strengthened considerably by a Senate rules change that cuts down on the amount of debate time once a nominee has cleared an initial vote. Instead of 30 hours, it’s now just two hours of debate. That allows McConnell to stack up more nominees for votes, as he did Thursday when he pushed through 12 nominees in a single afternoon.
Reshaping the courts has been a Republican goal for 30 years, said Senate Democratic leader Chuck Schumer, but has escalated sharply under Trump and McConnell.
Democrats are “doing everything we can” to slow down the judicial train, “but they changed the rules,” Schumer said.
“The people they are putting on the bench are just so bad for the average American in so many ways,” Schumer said in an interview with The Associated Press. “So many of these judges are hard right.”
Liberal advocates insist the judges being seated are far from the mainstream.
“Trump and McConnell are stacking the federal courts with extreme nominees who are hostile to civil rights, including voting rights, LGBTQ rights and abortion rights,” said Lena Zwarensteyn of the Leadership Conference on Civil and Human Rights, an advocacy group.
The Senate leader in particular is “singularly focused on getting through the courts what he can’t get legislatively” in a divided Congress, she said.
But Carrie Severino, policy director of the Judicial Crisis Network, a conservative advocacy group, said Trump and McConnell “have answered the call of the American people.”
She said voters “have made it clear through the democratic process that they want judges who adhere to the Constitution and don’t impose an agenda from the bench. That is exactly what they are getting.”
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