There was little surprise at the news that President Donald Trump is packing the federal judiciary with as many white, conservative males as he can dig up.
His anti-diversity federal judgeship count is indeed gruesome. To date, he has deemed only one black and one Hispanic worthy of a bench appointment. Three decades ago, President Ronald Reagan took much heat for his see no, find no black and Hispanic judicial appointments.
Going strictly by the numbers, Trump makes Reagan look like a piker with his abysmal refusal to nominate blacks and Hispanics. The kicker in this sad, sorry picture is that many of the white guys that Trump is shoving on the federal bench are not even remotely qualified.
His picks have gotten more “not qualified” ratings from the American Bar Association than any other president since the early 1960s. But then again, it doesn’t matter what the ABA has to say about Trump’s picks. He made it clear that he wouldn’t be paying any attention to its rating of a potential judicial pick.
The final insult to diversity is that there’s almost nothing that Democrats in the Senate can do about it.
Under the deal cut by former Senate Majority Leader Harry Reid, the Senate can’t block even a blatantly “non-qualified” appointee from the bench. Reid got rid of the 60 votes needed rule to confirm a federal judge. The majority vote confirmation rule now only applies to Supreme Court picks.
This is only the beginning of the racial judicial nightmare. Trump almost certainly will be able to appoint dozens more judges to the federal bench over the next few years. They will in almost all cases be judges cut from the same hard-line right-wing ideological cloth as his oft-touted favorite justices, Antonin Scalia and Clarence Thomas. And, if they choose, they can sit on the bench until they drop dead or are so infirm that they choose to call it quits.
Unlike a Supreme Court justice, they will be mostly unknown to the general public. That means that they will be able to do their legal dirty work far away from the glare and scrutiny of the media and the public.
Trump’s one and only high court pick, Neil Gorsuch, was a good example of the relative anonymity of federal judges. When Trump picked him for the high court, there was a mad scramble to find out just who he was, how he ruled in cases and what his political views were.
As it turned out they were pretty awful. In scrutinizing his rulings and opinions on gay rights, environmental and corporate power expansion related cases, Gorsuch was every bit the hard bitten ultra conservative judicial ideologue as Thomas and Scalia. He presents a mortal threat to the legal causes fought for by civil rights, civil liberties, environmental and economic justice groups.
Trump’s white judges will be among the judges that hear roughly 60,000 cases a year compared to the Supreme Court’s roughly 75 cases. They are for the most part the judges of last resort for a controversial legal and impactful case.
Their rulings are the ones that stand as binding law for not just years, but potentially generations to come. These judges are anything but non-partisan and objective. Their partisanship often comes through in their rulings and opinions on hot button cases that involve civil rights, civil liberties, the environment and what corporations can and can’t do.
A 25-year study by George Washington University, from 1970 to 1994, found that by a wide margin Republican-appointed judges turned back challenges by individuals and environmental groups challenging decisions of the Environmental Protection Agency in in most cases. Democratic-appointed judges, by contrast, accepted challenges in the majority of cases. The study was done almost 20 years ago, and the numbers would almost certainly be the same if not higher in assessing cases that even more ideologically bent federal appeals court judges have heard in the past two decades or tossed in everything from the environment to civil rights.
Appeals court judges take an oath to render the law fairly and impartially. They like to think that they do just that. There are few cases where an appeals court judge will take a position on a case that openly displays their partisan bias.
Yet, they all hold political views, some very strong political views, and that inevitably colors how they interpret facts and testimony in a case. A judge can find a case law rationale for any ruling that he or she wants to make on a case that often conforms to their political and ideological views.
Trump, egged on by conservative legal and public interest groups, knows this. Their goal is a total conservative remake of the federal bench. It’s this scary prospect that makes the federal judiciary the horror that Trump’s virtual lily-white picks will usher in.
Earl Ofari Hutchinson is an author and political analyst. His latest book is “The Trump Challenge to Black America” (Middle Passage Press). He is a weekly co-host of the Al Sharpton Show on Radio One and the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.