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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.