Is It Fair To Slam Him For Allowing A Whole Big Bunch Of Trump Nominated Judges Fly Through The Senate This Week? Short Answer: Yes.
In the final hours before the Senate’s Labor Day break, Majority Leader Mitch McConnell cut a deal with the Minority leader allowing him to ram 7 more Trump nominees through to federal district courts, bringing the August total to 15, with 8 more approvals slated as soon as the Senate gets back next week. There are 94 District Courts, which feed into 13 Federal Courts of Appeals (those are the ones you generally hear the most about), and then the Supreme Court.
Of course, McConnell’s been playing this game for a long time, and when Obama was President he played it in reverse: denying many nominees, most notably Supreme Court nominee Merrick Garland, who “morphed” into super-Conservative Neil Gorsuch after Trump took the reins. And even though conventional wisdom is Democrats have very little chance of retaking the Senate this year, conventional wisdom also had Trump with next to no chance of winning, and McConnell still put down all his chips on that outcome. No wonder he’s not willing to take any chances even if the possibility of things cutting the other way seem slim.
Which would seem even more of a reason to try to stall him out.
While we’re not usually in favor of fighting losing battles, because it often distracts from equally important winnable causes, in this case we kind of think it’s what Schumer, et. al. are paid to do, so they should be out there. One judicial activist (and former Schumer aide) likened the Minority Leader’s inaction to “bringing a butter knife to a gunfight”. We don’t even see the butter knife.
There is one big difference between now and the waning years of the Obama Presidency. Back then, Republicans controlled the Senate and since all federal judges must be approved by the Senate, they could run roughshod over Obama’s nominees. Since Democrats now do not control the Senate, they can’t really ultimately block anybody. But there are lots of things they can do to make life difficult for Trump and his Republican cohorts. In fact, here’s a series of Tweets from the previous Democratic leader’s former Chief of Staff, clearly outlining exactly what Democrats can and should be doing (if it’s too small to read, click on the image for a bigger version and also the full string of Tweets):
So why did Schumer give this week’s nominees a free pass? Did some Democratic Senators–particularly those in red states–desperately need to go home to campaign and McConnell’s kept them trapped in Washington practically all month by cancelling the August recess? Is it because McConnell made him some vague promise to start some kind of committee to think about renaming the Russell Senate office building in honor of John McCain (a Republican), meaning it’ll never actually happen? Did he offer Schumer something we don’t know about? Or was it just that this round of nominees aren’t the worst of the bunch and Schumer knows the numbers are against him anyway? Anybody’s guess…
What isn’t a guess is that when Trump throws around superlatives about how many judges he’s named, he ain’t kidding: 60 so far. 33 district court judges (plus 8 more on tap for next week), 26 appeals court judges and one Supreme Court Justice (with #2, Brett Kavanaugh, waiting in the wings). Those big numbers are partly because there were so many open judgeships as the result of McConnell blocking so many nominees when Obama was the President doing the nominating.
Or is Schumer reacting to the fact that when Democrats do move to block a nomination, Republicans these days condemn it as a craven political stunt, and Trump Tweets about the “unfairness” of it endlessly. So much so that it could potentially drive more Republicans to the polls in protest this November? To us, that’s even more of a reason to fight back. Because when Republicans were doing exactly the same thing for years, Democrats treated it more-or-less as a fact of life. Why? Are Democrats naturally more fatalistic?
No matter what the reason, it’s time for that to stop.
Also keep in mind that the nominees so far have been vetted and shepherded by White House Counsel Don McGahn, who is a Conservative, but generally seems to be a principled guy and definitely one of the “grown ups”. Except now Trump is showing him the door. According to the New York Times’ Julie Davis, the President let him know in a Tweet. So who knows what fresh hell the next White House Counsel, likely more of a Trump cultist, will bring? This thought from Senate Judiciary Chair Chuck Grassley, who was also complicit in the mass-blocking of Obama nominees (and who’s also a master of the Tweet):
Roll Call, which is usually very even-handed, reports the judges who passed through in this latest round are “not particularly partisan or controversial”, and that may be true. But that doesn’t mean when we dug a little deeper we didn’t find some interesting nuggets. Both good and bad, actually.
- Judge Terry Moorer, who’ll now be on the U.S. District Court for the Southern District of Alabama is Trump’s first African-American appointee to the federal bench. He’s a former Magistrate Judge, federal prosecutor and Military Judge.
- Western Pennsylvania Judge Susan Paradise Baxter had the support of both the Republican and Democratic Senators from her state. (And according to vettingroom.com she’s a registered Democrat).
So pretty good so far, right?
Not so fast:
- As mentioned above, Judge Charles Barnes Goodwin, who’s landed on the U.S. District Court for the Western District of Oklahoma, is rated “Unqualified” by the American Bar Association. But curiously, this doesn’t seem to have to do with a lack of experience or shoddy judgments as a U.S. Magistrate. According to vettingroom.org it more likely has to do with consistent problems actually showing up for work, especially “his frequent absence from the courthouse until mid-afternoon”.
- And take a look at Judge Barry Ashe, straight off the Federalist Society wish list and onto the U.S. District Court for the Eastern District of Louisiana. He may be best known for his lament that the 5th Circuit Court of Appeals (which sits in New Orleans) was engaged in a “war against religion”.
- The most intriguing of the bunch might be Judge Dominic Lanza, now named to the U.S. District Court for Arizona. Lanza is also a Federalist Society darling. The 40-year old Harvard Law grad and former federal prosecutor was originally put up by John McCain and Jeff Flake for a vacancy on the higher 9th Circuit Court of Appeals, but was nixed by the Trump White House, at least partly because Lanza’s mentor aggressively pursued a criminal case against a sitting Republican Congressman. Representative Rick Renzi was eventually convicted on a whole bunch of charges including fraud and extortion in a case stemming from a sweetheart land deal.
- And we have nothing against former Marine James Sweeney, who’ll now be a Judge on the U.S. District Court for the Southern District of Indiana, except that there already was a highly qualified nominee for this open seat named by President Obama, and endorsed by Indiana’s Republican Senator. Even so, McConnell still blocked the confirmation.
So let’s think again before we say this bunch is beyond reproach.