As early as this week, the Senate Judiciary Committee could vote to approve the nomination of White House lawyer Steven Menashi to the Second Circuit Court of Appeals, which covers New York, Vermont, and Connecticut and is considered one of the most influential of the federal appellate courts — the final step before he’s confirmed by the full Senate. If dearly departed Associate Justice Antonin Scalia was a Twitter egg, Menashi is basically a Daily Wire contributor with a law degree, and, the only thing standing between him and a lifetime appointment to one of the highest courts in the land is the willingness of South Carolina Sen. Lindsey Graham to throw the Democrats a bone.
As a Dartmouth student and then as a policy fellow at the conservative Hoover Institution, Menashi wrote dozens of editorials about a wide range of topics including how Western civilization rules, how a ghetto-themed fraternity party was not racist, how Take Back the Night Marches are bad, and other typically right-wing fare. More recently, he worked as an acting general counsel at the Department of Education under Betsy DeVos, where he participated in 37 meetings in less than a year on Title IX; months after Menashi left, coincidentally or not, DeVos drastically overhauled Title IX as it relates to sexual harassment and assault allegations, a move that’s been sharply criticized by victims’ advocacy groups.
During his confirmation hearing before the Judiciary committee, Menashi straight up refused to answer certain questions about his work at the White House on immigration, which is rather pertinent considering his close ties to senior Trump advisor and nativist ghoul Stephen Miller. (At least one Republican on the committee grumbled about Menashi’s performance, and so the vote, scheduled for last Thursday, was postponed.)
Whatever the outcome, the Menashi case is emblematic of what will be the most far-reaching and longest-lasting effect of the Trump administration, no matter the results of the 2020 election: its wildly successful project to make the federal bench into the conservative movement’s most powerful tool, one that’s poised to take a sledgehammer to decades of progress.
While the Trump administration has been an absolute shitshow in innumerable ways, the president has shown an uncharacteristic discipline in getting his judicial nominations confirmed. There’s one good reason for that: when it comes to the courts, he’s chosen to shut up and listen to people who know more than him (namely former White House counsel Don McGahn and Federalist Society executive vice president Leonard Leo.)
If Antonin Scalia was a Twitter egg, Steven Menashi is basically a Daily Wire contributor with a law degree.
Trump’s success in changing the makeup of the federal bench might be one reason why he’s remained so wildly popular among the GOP base. The president said during the 2016 campaign that he’d only appoint judges to the Supreme Court who’d vote to overturn Roe v. Wade; three years later, the conservative Chief Justice John Roberts is the closest thing the Court has to a “swing vote.”
“I think the Trump administration has followed what other administrations have been doing since Nixon said he wanted to stack the courts with ‘judges with judicial restraint,” University of North Carolina law professor Bill Marshall, a former White House deputy counsel to Bill Clinton, told The Outline. “But Trump has done that and then doubled down on that.”
The result of that effort has been a thorough overhaul of the federal courts. According to the conservative Heritage Foundation, Trump’s number of confirmed judges at this point in his presidency, 156 (which includes his two appointments to the Supreme Court so far), outpaces every president going back to at least Reagan; at the same point in Obama’s tenure, he only had 99 confirmed. (It’s worth noting that the Senate was controlled by Democrats for six of Obama’s eight years in office.) And according to statistics compiled by the LGBTQ civil rights organization Lambda Legal, Trump-appointed judges make up at least a quarter of the bench on eight of the 13 appellate courts in the country; in the Sixth Circuit, Trump-appointed judges make up nearly 40 percent of the bench. And overwhelmingly, these newly confirmed [judges are white, male, young, , and looked upon approvingly by the Federalist Society.
“The Supreme Court takes 100 to 150 fity cases a year, but the lower courts haven’t gotten the attention,” Lambda Legal senior attorney Sasha Buchert told The Outline. “The circuit courts of appeal issue over 50,000 decisions a year. They’re often the courts who have the final say.”
With a Republican-controlled Senate and officials unconcerned with norms that have previously governed the judicial nominee process, Trump has managed to make such disproportionate impact on the court in a short amount of time. During the Obama administration, in contrast, the Judiciary Committee under both Democratic and Republican chairs allowed home-state senators to effectively kill judicial nominations by not returning or giving a negative opinion on a nominee on a literal blue slip.
“Nominee after nominee is either unqualified, or hiding their writings from the committee, or they’ve got clear views on LGBT people that show they aren’t going to provide fair and impartial justice.”
With a Republican White House and Senate, however, that practice is now effectively dead. (Some Democrats, in their infinite wisdom, have proposed bringing this process back once they regain power, as well as returning to a 60-vote threshold for Supreme Court nominees.)
“The changes that the Senate Judiciary Committee have made has created a rubber stamp for nominees to sail through,” Buchert said. “Nominee after nominee is either unqualified, or hiding their writings from the committee, or they’ve got clear views on LGBT people that show they aren’t going to provide fair and impartial justice.” Case in point: Last week, all 10 Republicans on the Senate Judiciary approved the nomination of 37-year-old Justin Walker to a seat in the Western District of Kentucky. If confirmed, Walker, a former clerk for Associate Justice Brett Kavanaugh, would be at least the fifth Trump-nominated judge confirmed by the Senate to have been rated as “not qualified” by American Bar Association. (Walker has less than 12 years’ experience as a lawyer, the amount typically considered sufficient for a nominee.)
Even though some presidential hopefuls have put forward proposals to fix the balance of the Supreme Court, there hasn’t been much in the way of reforming the lower courts.
While the Republicans have held the Senate since Trump took office, Senate Democrats haven’t exactly been blameless, either. In August and then October of last year, Democrats cut deals with Republicans to let them pass a batch of judges at once. But with some exceptions, Democrats appear to be reaching their wits’ end, they have more recently voted for Trump-nominated judges in far fewer numbers, Politico reported this summer.
But the damage has been done. Even though some presidential hopefuls have put forward proposals to fix the balance of the Supreme Court (such as expanding its size, or as Pete Buttigieg has suggested, expanding the size and rotating appellate judges onto the Supreme Court), there hasn’t been much in the way of reforming the lower courts.
And this damage will potentially have a lasting legacy. If Republicans retain power in 2020 and beyond, the federal bench is going to look distinctly Trumpian for at least the next 30. Just when it’s becoming clearer (and more palatable to Democratic primary voters) that extensive federal government intervention is the only way to solve long-standing problems like climate change, health care, housing, student debt, immigration, and reproductive rights, the last thing we need is a reactionary judge like Menashi. Presidential candidate Kamala Harris’s (good) idea to force historically anti-abortion states to gain pre-clearance before passing changes to their abortion laws, for instance, is bound to run into a brick wall with a Supreme Court that’s already struck down pre-clearance for voting rights.
“This is a little bit of a slow moving hit-and-run with the Trump administration, and people are going to start to see why courts matter, unfortunately, as this plays out,” Buchert said. “If the White House changes hands — which we hope it will — there’s going to be a different administration, but the policy priorities they might have are going to be stymied by folks who clearly have an agenda.”
Trump’s success in changing the makeup of the federal bench might be one reason why he’s remained so wildly popular among the GOP base.
And that’s assuming that a Democratic president and Congress eventually does what’s necessary on any one of those issues. And although Bill Marshall favors “bipartisan consultation” to fix the process, he invoked the radically capitalist Lochner era of the Supreme Court — the period from 1897 to 1937 during which the Court acted nearly as a lawmaking body — in noting that without some sort of check on Trump’s remaking of the federal court things as they are now could still get a lot worse.
“Certainly there’s a risk we could return to the 1930s, where limits on child labor and production of dangerous and faulty products were being struck down by federal courts,” Marshall said. “I certainly hope we don’t return to that.”
The conservative legal movement is finally seeing the fruits of its labor after spending 30 years pushing the courts further and further right. Regardless of what happens next November, an endless list of rights and protections — reproductive, labor, economic, educational, and so on — that we have now and don’t have yet are endangered. Making things even more precarious is that some Senate Democrats (perhaps the only entity that could eventually put an end to this) appear to be equally concerned with finding a truce once they take back power as they are with rebalancing the courts.
That would be a grave mistake. Without a proportional left response to this takeover of the courts, the Democrats are rapidly headed towards a future in which their priorities are passed and then tied up in the courts for months before being ultimately struck down by a court full of Prager University subscribers. And that would — or more likely, will — be a disgrace.