While almost everyone was (understandably) caught up with the start of public impeachment hearings in the House, Republicans in the Senate snuck through perhaps the most crucial Trump Circuit Court appointment yet.
We are literally in the most remote place we have ever been right now, with no WiFi, so don’t have the resources to produce a full report, but we can point you to this very good coverage by Mark Joseph Stern in Slate, of the confirmation of Steven Menashi to the 2nd Federal Court of Appeals. We won’t detail Menashi’s many weaknesses and controversies (they’re all in that story), but we will draw a line between the 2nd Circuit and the critical role it is likely to play, and is already playing in the various current proceedings against the President. Because the 2nd Circuit Court of Appeals covers New York, and will now have a majority of its 13 judges appointed by Republicans, including a whopping 5 by Trump, this could amount to one of the President’s and Senate Majority Leader Mitch McConnell’s most significant judicial appointments of all. Menashi, who’s only 40-years old, could be there forever. He also appears to be one of those guys (like Attorney General Bill Barr), who considers Presidential powers (at least if the President’s a Republican), to be virtually limitless. So that bodes well for lawsuits challenging access to Trump’s tax returns, among other things.
And 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.)
For the rest of this we’ll refer back to a piece we wrote in July, entitled “Republicans Remind Themselves Of The Good Trump Does Them”. Because we think this particular approval, coming at this particular time, underscores what we wrote back then: disputing the opinion of many legal scholars and reporters that this would’ve happened under any Republican President, so it isn’t explicitly a Trump thing.
In that piece we wrote:
“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.”
Which is exactly what appears to be happening right now.
Under a “normal” Republican President, nominees with really extreme views would be in the news every day. Not in a neatly rising pile obscured by Trump’s ever-burning dumpster fire. More regular coverage might also bring to light Trump’s unprecedented record of naming white men to these key judgeships; many more than his predecessors, including Republicans.
We want to end on a hopeful note, so here are the words of Chief Justice John Roberts:
“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.”