The Truth about Trump’s Judges

Courts Resources 08.25,20

By Samantha Cyrulnik-Dercher

When Republicans brag about Trump’s 203 lifetime confirmations to the federal bench, we know what they’re really saying. They’re bragging about a disproportionately white male group of ideologues, many of whom were manifestly unqualified to serve as lifelong judges and to uphold the principle of equal justice under law. They’re boasting about a president who outsourced his responsibilities to extremist special interest groups like the Federalist Society and Heritage Foundation. They’re praising Senate Majority Leader Mitch McConnell for trying to sabotage the Obama administration at every turn (most notably, for stealing a Supreme Court seat), for ignoring a pandemic that has killed more than 177,000 people in America, and for refusing to move on anything meaningful to stop the state-sanctioned violence against Black and Brown people. All of this so McConnell can rush his cruel agenda through the courts by installing extreme and biased judges.

During Brett Kavanaugh’s confirmation process, people across the nation were gripped as they witnessed the shameful and painful breakdown of a process that ended with an unfit, ill-tempered man serving on the nation’s highest court for life. But sadly, there are many more judges in the mold of Kavanaugh — and McConnell and Senate Republicans have shattered norm after norm to ensure these dangerous nominees get lifetime seats on our federal courts.

When Trump and others talk about this president’s judicial confirmations, know that this is what they’re really talking about:

#1 — MITCH MCCONNELL’S HISTORIC OBSTRUCTION AND THEFT

Senator McConnell led the historic obstruction of President Barack Obama’s judicial nominees when he became majority leader in 2014. He rigged the system and stole a Supreme Court seat — and refused to fill more than 100 district and circuit court seats — in Obama’s final year as president. Then, once Trump was elected, McConnell and Senate Republicans rushed to fill vacancy after vacancy, breaking longstanding Senate rules and norms along the way. They disregarded objections to nominees from home-state senators; stacked hearings to limit the amount of time both the Senate Judiciary Committee and the public could scrutinize nominees; held hearings during Senate recess; pushed through nominees rated Not Qualified by the nonpartisan American Bar Association; hid potentially embarrassing and disqualifying records of nominees — all in pursuit of their transformation of the courts with extreme judges who will support Trump’s agenda to devastate our hard-fought civil and human rights.

#2 — AN UNPRECEDENTED ROLLBACK OF DIVERSITY

Sixty percent of America today is non-Hispanic white, and men comprise about 50 percent of the population. Why, then, are Trump’s appointees nearly 90 percent white, nearly 80 percent male, and about two-thirds white men? At the appellate level, 42 of his 53 circuit court appointees are men. One is Latinx. One is openly LGBTQ. Zero — yes, zero — are Black or Indigenous. At a time when the legal profession has more women and attorneys of color than ever before, this president’s record on judicial diversity is truly appalling. Several of his white judges replaced nominees of color from the Obama administration — nominees who would be sitting on the bench today if not for McConnell’s historic obstruction.

Trump, McConnell, and Senate Republicans are rolling back decades of progress made on diversity in our judicial system — and it’s reflective of the kinds of limited perspectives and experiences they welcome on the federal bench. For example, Brown v. Board of Education is known as the landmark Supreme Court case that ended legalized apartheid in American schools. It is the bedrock of America’s movement for racial justice; it is difficult to imagine a case that had a more meaningful, positive impact upon which we could have our civil rights recognized. Despite the historic nature of Brown and the principles of racial equality it promotes, many of Trump’s nominees actually refused to state whether they believed that the case was correctly decided. It is unimaginable for any president of any party to select candidates for lifetime judgeships who cannot unequivocally state that segregating public schools based on race is unconstitutional. It took immense pressure from the civil rights community for nominees to finally bring themselves to say that Brown was correctly decided — pressure that should never have been necessary.

Judges who cannot or will not comprehend the civil rights arguments of the 1950s — that separate but equal is inherently unequal — certainly cannot be perceived to be fair arbiters of justice in the decades to come. Without judges who truly reflect and respond to a 21st-century America, we cannot ensure that all of our civil and human rights are recognized and protected.

#3 — UNQUALIFIED AND ILL-TEMPERED JUDGES

Trump and Senate Republicans like to claim that the president has chosen “highly qualified nominees,” but the reality is this: many of Trump’s nominees have lacked the basic experience and temperament that should be required to be a federal judge.

For example, one nominee to the U.S. District Court for the District of Columbia, Matthew Petersen, was so inexperienced that he could not answer basic questions about legal procedure. During his confirmation hearing, after admitting that he had never tried a case or even argued a motion in state or federal court, he could not define a motion in limine, a motion frequently used at pre-trial hearings and during trial in both state and federal courts. Petersen eventually removed himself from consideration for the judgeship, but the White House stood by him even after that, accusing opponents of distracting from the president’s “record-setting success” on judges.

Sadly, this is the record Trump has set on judges: he has nominated the highest number of individuals who the non-partisan American Bar Association (ABA)’s Standing Committee on the Federal Judiciary found to be not qualified because of their lack of relevant legal and judicial experience. Nine of Trump’s picks received this Not Qualified rating — a record indeed, but not the kind anyone should want to boast about.

One such nominee, now judge, Lawrence VanDyke, had numerous people report to the ABA that they were concerned about his temperament, as reported to the Senate. One interviewee said that “Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules.” They felt that he “lacks humility, has an ‘entitlement’ temperament, does not have an open mind, and does not always have a commitment to being candid and truthful.” Despite this ominous warning, which should disqualify anyone from a job where fair-minded honesty is a necessity, McConnell and Senate Republicans were pleased to hand VanDyke a lifetime seat on a powerful appeals court.

Other nominees’ quotes speak for themselves. One of Trump’s picks, Jeff Mateer, attacked transgender youth, calling innocent children examples of “how Satan’s plan is working.” His nomination was eventually withdrawn, but not before Senate Republicans called him a “principled” man who would “serve Texans well on the bench.”

And then there was Brett Talley, a nominee to a district court in Alabama, whose nomination was eventually withdrawn as well. Talley, who never tried a case, became well-known for headlines like “Trump Judicial Nominee Brett Talley Appears to Have Defended ‘the First KKK’ in Message Board Post” and “Law Clerk by Day, Ghost Hunter by Night, Now Trump’s Judiciary Nominee.”

# 4 — DECIMATING HEALTH CARE

Even in the midst of a global pandemic, an economic catastrophe, and a long-overdue reckoning with America’s structural racism and police brutality against Black and Brown people, McConnell isn’t interested in helping people. More than 177,000 Americans have died and millions have lost their jobs and often their health insurance. Meanwhile, Trump and many Senate Republicans keep fighting to invalidate the entire Affordable Care Act (ACA) by arguing in court that it’s unconstitutional — and at the same time, McConnell has rushed to confirm countless judges who have argued against health care rights for millions of Americans.

They have plucked nominees, many of whom are now lifetime judges, who haven’t just criticized the ACA in their personal lives — they have used their powerful positions to actively undermine the ACA and the millions of people it covers. For example, Chad Readler, now a Trump appointee on the Sixth Circuit (which covers Kentucky, Michigan, Ohio, and Tennessee), also served as a high-ranking Justice Department official, where he helped lead the fight to destroy the ACA. He abandoned the longstanding duty of the Justice Department to defend federal laws in court and filed a brief arguing that the ACA’s mandate of coverage for preexisting conditions — which brought millions of people health care coverage that they were previously denied — was unconstitutional. His position on the ACA was so extreme that even a Republican senator called this argument “as far-fetched as any I’ve ever heard.”

#5 — PUTTING OUR CIVIL AND HUMAN RIGHTS AT RISK

It’s not a coincidence that so many of Trump’s judges have argued or voted against the ACA, marriage equality, abortion rights, voting rights, environmental protections, and more. It’s their plan. In fact, while running for president in 2016, Trump outsourced one of the president’s most important duties — the consideration of judges who will sit on our courts and decide our rights for a lifetime — to the far-right Federalist Society and Heritage Foundation. He campaigned with a curated Supreme Court shortlist to assure skeptics that he would implement their cruel agenda through the courts. Specifically, he outlined litmus tests that put our hard-fought civil and human rights at risk, including taking away health care access, gutting Roe v. Wade, and continuing the right’s obscene and deadly misreading of the Second Amendment.

We have fought far too long and far too hard for our civil and human rights. We have to make sure our courts reflect the people they are supposed to serve. Not Trump, not McConnell — us.

Samantha Cyrulnik-Dercher is the fair courts manager at The Leadership Conference on Civil and Human Rights.

For more information, read “Trump’s Takeover of the Courts” in the April 2020 edition of the University of St. Thomas Law Journal.

The Leadership Conference on Civil and Human Rights opposed the following Trump judicial nominees:

Confirmed:

Withdrawn:

  • Ryan Bounds, U.S. Court of Appeals for the Ninth Circuit
  • Jeff Mateer, U.S. District Court for the Eastern District of Texas
  • Matthew Petersen, U.S. District Court for the District of Columbia
  • Brett Talley, U.S. District Court for the Middle District of Alabama

Returned to the president, not re-nominated:

Pending:

On May 13, 2019, The Leadership Conference announced opposition to judicial nominees who have refused to state unequivocally that the landmark Brown v. Board of Education decision was correctly decided. Read our letter.

The Leadership Conference expressed serious concerns about the following nominations: