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Conservatives Celebrate Federal Courts’ Sharp Right Turn

The judiciary is already dramatically more white, male, conservative, and hostile to civil rights.

November 21, 2019
Chris Ryan/Getty

The rank-and-file of the Federalist Society last week took a loud, proud, boastful victory tour of the wreckage they’ve made of the federal judiciary since President Trump joined forces with Senate Majority Leader Mitch McConnell to ramp up the pace for conservative nominees. The star of the D.C.-infused show was Supreme Court Justice Brett Kavanaugh, who returned as a “conquering hero” to his ideological benefactors whose political support both enabled his nomination and then ensured its success amid credible allegations of sexual misconduct. 

Charles Pierce at Esquire called the Kavanaugh show a “triumphal pity party” because it allowed the newest justice to portray himself as a martyr falsely accused of sexual assault while allowing the audience to soak up the magnitude of their disastrous achievement. Trump has placed no fewer than 47 judges onto federal appeals court benches and at least 112 in federal district courts. This is in stark contrast to the rate of President Obama’s successful appointments, which was thwarted by Republican obstructionism led by McConnell. Many of the new judges are loyal Trump functionaries whose careers and attitudes make them either barely qualified to hold life-tenured positions or not qualified at all.

Take for example Stephen Menashi, confirmed last week by a vote of 51–41 to the Second Circuit Court of Appeals. Menashi, a graduate of Stanford Law School who once clerked for Justice Samuel Alito, is known mainly for four things, none of which ought to give litigants any confidence that he’ll consider their claims in a reasoned, neutral way. He is known for hostility toward the LGBTQ community, antipathy for students with debt due to scamming by for-profit colleges, and skepticism about multiculturalism. Trumpian through-and-through.

The fourth reason why Menashi does not deserve a life-tenured job? A question of style, not substance, in the way he persistently misbehaved during his abbreviated Senate confirmation hearing. He refused to answer basic questions about his role in the formation and execution of the Trump administration’s immigration policies. Republicans and Democrats alike criticized Menashi for his intemperate appearance before the Senate Judiciary Committee, yet Republicans nonetheless voted to give him a lifetime job in court. 

Menashi takes over the appeals court seat once held by Thurgood Marshall when he was on his way to the Supreme Court. The Trump nominee’s confirmation is more than symbolic, though. It changes the ideological balance on the New York-based Second Circuit from Democratic to Republican at a time when it will be required to rule on some of the most momentous legal challenges to both the Trump presidency and the first family’s shady business dealings. There is no reason to think Menashi will vote to check even patently unlawful exercises of Trump’s authority.

Lest anyone underestimate the aims of the president and the Federalist Society, Attorney General William Barr on Friday made clear the scope of authoritarian power this crew has in mind. His speech to his society buddies was an extraordinary exercise in gaslighting and projection and an alarming expression of executive power. To Barr, Trump is a victim, and a persecuted one, and it’s the Democrats who are undermining the rule of law with their resistance to the administration’s odious policies.

There was little reason before Barr’s speech to believe that the nation’s chief law enforcement official will serve now as some honest broker for the majority of Americans who didn’t vote for Trump and who now are furious about his scandalized tenure. There are signs that Barr views himself as an instrument of Trump’s power. These signs include way Barr tried to spin the Mueller report, his funny-if-it-weren’t-so-sad trip through Europe during which he tried to drum up conspiracy theories to aid Trump’s reelection campaign, and his pernicious investigation of the FBI for political purposes.

And all this came before Barr gave a speech last week that so craven in its embrace of presidential authority and so sweeping in its condemnation of those who have exposed the administration’s crimes and corruption that it will live in infamy at the Justice Department long after both Barr and Trump are gone from their posts. Here’s one passage from Barr’s speech that makes you wonder if the two authoritarians are sharing the same brain:

“When I ask my friends on the other side, what exactly are you referring to? I get vacuous stares, followed by sputtering about the travel ban or some such thing. While the president has certainly thrown out the traditional Beltway playbook, he was upfront about that beforehand, and the people voted for him.”

Which “friends on the other side” has Barr been talking to? The same “many people” the president always refers to when he wants to pretend he has popular support for some awful thing he has done or said? Besides, it’s not Barr’s job to lash out at the president’s critics or to pretend that Congress’s extraordinary oversight duties aren’t directly tied to the Trump administration’s astonishing array of corruption and incompetence. It’s Barr’s job to be the nation’s chief law enforcement official — the chief prosecutor for all American people.

Barr was picked by Trump because he auditioned for the job with a memo roasting his old friend Robert Mueller. Menashi was picked by Trump because the Federalist Society endorsed him and because Menashi had demonstrated his fealty to the administration’s most odious policies. Kavanaugh was, and remains, a poster child for the modern conservative jurist. All three men share little in common save for their willingness to advance their careers to help achieve what Trump seeks. All three are vivid symbols of how our norms have been submerged since 2017.

Speaking about the number of judges he had appointed so far, Trump said last week just as the Federalist Society’s party was getting started, “We are going to be, I think, just about No. 1 by the time we finish — No. 1 of any president, any administration.” It’s true: by the time Trump is gone, the federal courts will be dramatically more white, male, conservative, hostile to equal protection, entranced by corporate interests and gun rights, bedeviled by voting rights, and beholden to authoritarian power than they were when Trump took office.

Thus it has been now for the past 50 years, as the Supreme Court has tacked relentlessly to the right under the Nixon, Reagan, and Bush presidencies. And thus it will be for the foreseeable future now that Trump and McConnell have churned through nominees who will poison the nation’s politics for decades. The way it looks today, an American born in 1969 might spend the entirety of her life under a high court dominated by a conservative majority. No wonder the Federalist Society is throwing parties and celebrating their power and prominence.

Democratic voters and Democratic politicians have few to blame but themselves for allowing Republicans for generations to successfully frame political disputes in terms of Supreme Court votes. “Democrats have been caught napping on the courts for a while now, and we are going to pay the price for years to come,” said Brian Fallon of Demand Justice, a progressive organization that aims to move the courts to the left, amid the ruins of last week. It will take a long time to dig out. A long time and many adverse rulings from Kavanaugh, Menashi, and the 150 or so other Trump judges the nation does not need.

The views expressed are the author’s own and not necessarily those of the Brennan Center.