While you and me were focused on Trump’s racist Tweet and the furious battle that ensued, Senate Republicans cleared the 43rd judge to a U.S. Circuit Court during this Presidency
The approval of Trump’s nominee, Peter Phipps, to the 3rd Circuit Court of Appeals last week nearly completes Senate Majority Leader Mitch McConnell’s breakneck (and landmark) project of filling as many federal judgeships as possible with young, ultra-Conservative judges by 2020, just in case Trump loses next time around. And even if he doesn’t, since they’re all lifetime appointments, they’ll very likely outlast Trump anyway in terms of influence on American society.
Circuit courts are crucially important, because these regionally based federal courts are usually the last stop for a case before it gets to the Supreme Court. Which means if the Supreme Court refuses to hear a certain case (which it does with far more cases than it actually hears), the circuit court involved has the final say. (That’s why when you hear Trump discrediting certain circuit courts by saying they get all their rulings overturned by the Supreme Court it’s a bunch of baloney: of course a high number of cases that reach the Supreme Court involve overturning a circuit court ruling, otherwise the Supreme Court wouldn’t bother hearing them.)
The newest Circuit Court Judge, Peter Phipps, is hardly the most controversial. But he tips that court to a Conservative majority. Which is worth noting even though we wish (and still hope) Chief Justice John Roberts is right when he said:
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges….What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
And it’s worth noting that the 46-year old Phipps replaces an Obama appointee, Thomas Vanaskie, who retired at the age of 65 prior to Obama leaving office. But if Senate Majority Leader Mitch McConnell wasn’t going to confirm or even give a hearing to Obama’s Supreme Court nominee, Merrick Garland, with all the political fallout sure to come with that, he sure as heck wasn’t giving Obama this one, where the political fallout would be basically none.
In fact, Obama had nominated an Assistant U.S. Attorney for the Western District of Pennsylvania, Rebecca Haywood, to the 3rd Circuit. But her confirmation was blocked by a Republican Senator in the state where that Circuit Court is located, in this instance, Pennsylvania. So this time Pennsylvania’s other Senator, a Democrat, tried to do the same thing and block Phipps’ nomination. Republicans however, refused to let him.
What’s even more striking is that there are zero African Americans, and zero Hispanics among Trump’s nominees to the federal Circuit Courts. The few that aren’t white are Asian-American. About 1/3 of Obama’s Circuit Court appointments were POC, according to this really enlightening HuffPo piece (which we almost didn’t read because the headline is so terrible).
Meanwhile, 8 in 10 of Trump’s Circuit Court appointments are men. Obama was pretty close to half and half male/female.
This column in Esquire argues (as we often do about stuff), that this isn’t a “Trump thing”. That the same agenda would’ve been carried out, and the same judges would’ve been confirmed under any Republican President.
We’re not so sure that’s true. While we agree that coming up with names of Circuit Court judges is probably not something Trump spends a heck of a lot of time on (most likely none at all), he does help a lot by creating that constant whirlwind of insanity at the White House. And that might easily make one forget there’s an unprecedented judicial transformation going on at all.
Under a “normal” Republican President, nominees with really extreme views would more likely be called out in the course of everyday reporting by mainstream media. And if this was in the news everyday instead of some Tweet, there’d definitely be more pressure to make the appointments a little more diverse. Look back at previous Republicans, and both George W. Bush and his father before that, appointed at least a couple of black and Hispanic judges to Circuit Courts. The only modern President with a lower diversity count than Trump is Reagan.
There is an interesting battle brewing for one of the few remaining Trump nominees who hasn’t been approved yet: Judge Halil “Sul” Ozerden in the 5th Circuit. This isn’t a fight between Democrats and Republicans. His nomination is in jeopardy because of infighting within the Republican party. You see, Ozerden (his parents emigrated from Turkey and he was born in Mississippi), might not be Conservative enough for some, meaning his rulings haven’t always been knee-jerk in favor of far-Right causes. Most notably, he dismissed a case where the Archdiocese of Biloxi challenged the Obamacare mandate that contraceptives be covered even if the employer objects on religious grounds. But he was very careful to say he was doing so not because he believed it was or wasn’t the correct decision, rather on the basis of “ripeness”. That’s to say numerous similar cases out there needed to be considered and perhaps consolidated, so a ruling then and there would’ve been premature. Dismissal for such reasons is something judges often do, at least in part because they don’t want to be overtly political.
But apparently Ozerden–who is a close personal friend of White House Chief of Staff Mick Mulvaney–was not careful enough… His Republican opponents feel he should’ve taken a more activist stance. And now they’ve pinned the rap on him that his decisions in general are overturned too often to make him an impactful judge. A review by vettingroom.org finds that’s simply not true: his decisions were overturned about as much as Trump appointed judges who did get through to Circuit Courts. So ultimately, this one could be up to Democrats. If a bunch of Republicans vote against Ozerden, it’ll be up to Democrats to decide if he’s the best they’re going to do under the current circumstances, or if should vote him down just so they can say they did something to try to stem the Trump/McConnell tide.