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The Overton Window and Trump’s Judges

Trump’s judicial nominees have been so extreme that what was once considered beyond the pale is now acceptable.

January 5, 2018

In its first year in power the Trump admin­is­tra­tion has done to the federal judi­ciary what it has done more broadly to Amer­ican polit­ical discourse. It has moved the courts far to the right, beyond prior bound­ar­ies, by relent­lessly nomin­at­ing conser­vat­ive ideo­logues, with and without appro­pri­ate exper­i­ence, to life-tenured jobs on the bench. Thanks to the Repub­lican-controlled Senate, which has rushed to confirm most of these picks, we now have a grow­ing cadre of Feder­al­ist Soci­ety-infused jurists who will be meting out their partic­u­lar brand of injustice for gener­a­tions to come.

Justice Neil Gorsuch, now ensconced on the Supreme Court, is the most notable example of the polit­ical theory known as the “Over­ton Window.” It posits that there is a relat­ively narrow range of ideas politi­cians can consider and still win re-elec­tion. However window can be moved right or left by the persist­ent intro­duc­tion and discus­sion of once-unthink­able ideas. Pres­id­ent Trump has moved the window with his racist, ignor­ant, nativ­istic, and miso­gyn­istic rhet­oric. His admin­is­tra­tion has moved the window with preju­diced, self-defeat­ing, delu­sional policies. And the White House’s judi­cial picks have changed the nature of our conver­sa­tion about what it means to be an Article III judge.

Gorsuch, who on some issues makes the late Antonin Scalia seem like William Bren­nan, seems reas­on­able and main­stream only in contrast to fellow Trump nomin­ees such as Don Willett, confirmed last month to the 5th U.S. Circuit Court of Appeals, John K. Bush, confirmed in July to the 6th U.S. Circuit Court of Appeals, and Thomas Farr, a nominee to the federal trial bench in North Caro­lina. Willett, beloved by journ­al­ists for his Twit­ter wit, during his tenure on the Texas Supreme Court little more than a mouth­piece for his polit­ical bene­fact­ors, conser­vat­ive megadonor Foster Freiss (who is contem­plat­ing a 2018 U.S. Senate run from Wyom­ing), and evan­gel­ist James Dobson, founder of Focus on the Family. He campaigned for the state bench, and then for re-elec­tion, as a conser­vat­ive jurist who would cham­pion pro-life, gun-rights, homeschool­ing causes.

There were, given Willett’s long public record of partisan juris­pru­dence, plenty of legit­im­ate ques­tions he could have been asked when he appeared before the Senate Judi­ciary Commit­tee in Novem­ber. But the panel seemed suffi­ciently relieved to see that Willett wasn’t foam­ing at the mouth that they never even asked him about his obvi­ous conflicts of interest (or anything else of substance). Would he recuse himself from cases in which Dobson or Freiss had an interest? Did his juris­pru­dence leave room for athe­ists and others who do not share his reli­gious views? Now we will get answers to those ques­tions only when actual contro­ver­sies erupt; last month, Willett was confirmed to the bench on a party-line vote.

Bush, for his part, was confirmed easily despite a consist­ent record of anti-gay bias. When asked during his nomin­a­tion process about some of his other views, like his compar­ison of slavery to abor­tion or his refusal to acknow­ledge the effect of global warm­ing, Bush refused to answer candidly, saying only that his personal views were irrel­ev­ant to the job for which he was being considered. No matter, he won unan­im­ous support from Senate Repub­lic­ans, and he was confirmed 51–47.

Thomas Farr, mean­while, not yet confirmed, has yet to fully answer for a profes­sional career rooted in white suprem­acy and voter suppres­sion. Twice, in 2006 and 2007, during the second Bush admin­is­tra­tion, Farr was nomin­ated to the federal bench. Twice he failed to have his nomin­a­tion even voted upon by the Senate Judi­ciary Commit­tee. Now Farr, who once was coun­sel to the arch-conser­vat­ive Sen. Jesse Helms,once again is up for a seat in a district that has been vacant for 11 years. But the same baggage that hobbled Farr a decade ago hobbles him today. In 1990 he was coun­sel to Helms when the North Caro­lina senator faced a tough re-elec­tion fight against a black Demo­cratic nominee. Accounts vary, but there’s no doubt Farr was present at a meet­ing at which the campaign discussed its notori­ous “ballot secur­ity program” which resul­ted in 100,000 post­cards being mailed to black voters erro­neously warn­ing they could face jail time if they provided incor­rect inform­a­tion at the polls. Senate Repub­lic­ans tried to rush Farr’s confirm­a­tion ,but Senate Demo­crats, so far anyway, have succeeded in block­ing the move.

Yet, Willett, Bush, and Farr, seem like paragons of high juris­pru­dence in contrast to Trump nomin­ees Brett Talley, Jeff Mateer, and Matthew Petersen, three hapless, failed candid­ates who had no busi­ness even being considered for the federal bench. Petersen, famously, was unable to answer even basic legal ques­tions during his confirm­a­tion hear­ing from Sen. John Kennedy, a fresh­man Repub­lican from Louisi­ana, who in has some­times under­mined the admin­is­tra­tion’s nomin­a­tion strategy. Mateer was nomin­ated even after he called same-sex marriage “debauch­ery” and trans­gender chil­dren part of “Satan’s plan.” Talley was patently unqual­i­fied even before it was learned he had failed to disclose that his wife just happens to be chief of staff to White House Coun­sel Donald McGahn. Moreover Talley’s spouse is also a witness in Robert Mueller’s obstruc­tion of justice invest­ig­a­tion.   

But we should­n’t focus on the nomin­a­tions that have been stymied. They only tell the smal­ler part of the story of the admin­is­tra­tion’s judi­cial picks one year into its rule. They repres­ent only sporadic victor­ies in a broad war that is being fought and won weekly by Senate Repub­lic­ans, the White House, and conser­vat­ive groups. They high­light only the worst excesses of Trump’s judg­ment. The bigger story is the far larger number of men (and they have almost always been white men) whose nomin­a­tions have been endorsed by the Senate and who now are sitting in robes exer­cising life and death power over the rest of us.   

As a whole, Willett, Bush, and Farr moved the Over­ton window to the right to make Gorsuch seem like a moder­ate on the Supreme Court. Talley, Mateer, and Petersen moved the Over­ton window even further to the right to make Willett, Bush, and Farr seem like main­stream judi­cial nomin­ees. They aren’t. These men, and the many more inapt Trump nomin­ees to come this year, consti­tute a clear and present danger to Amer­ican law. They already have changed our percep­tions of what consti­tutes an accept­able judi­cial nominee. And it’s unclear whether those percep­tions will ever go back to the way they were.

(Photo: AP)

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