October 17, 2017; New York Times
Amid the turbulence and internal disagreement within the GOP, President Trump and Senate Majority Leader Mitch McConnell have seemingly found an arena in which they can agree and find success: filling the more than 100 lower federal court vacancies with lifetime appointments of conservative jurists who will hold sway over legal decisions for the next 40 years or more and build a legacy for both Trump and McConnell.
“The judge story is an untold story; nobody wants to talk about it,” an enthusiastic Mr. Trump said during his impromptu appearance with Mr. McConnell. “But when you think about it, Mitch and I were saying that has consequences 40 years out, depending on the age of the judge—but 40 years out.”
Currently, the Trump administration is bypassing many Senate processes for determining these nominees. Tradition called for home-state senators to make recommendations to the president, with the president nominating from among those recommended. President Trump has relied on the Heritage Foundation and the Federalist Society, two conservative think tanks, to provide him with lists of judicial nominees, bypassing in many cases the recommendations of Senators from both parties.
The large number of vacancies has resulted from a slowdown and refusal to act on lower court nominations when Republicans controlled the Senate during the last two years of the Obama administration. The unprecedented refusal to even consider Obama’s nomination of Merrick Garland to the Supreme Court was pointed to with pride by McConnell, as he said “the single most significant thing this president has done to change America is the appointment of Neil Gorsuch to the Supreme Court.” The courts, not just the Supreme Court, are seen as a highlight for the president and the GOP.
Currently, there are 147 judicial vacancies and 51 nominees, with 45 still needing hearings in the Senate Judiciary Committee before they can be voted on by the full Senate. Six nominees have Committee approval and are awaiting a Senate vote. With a GOP majority in the Senate and the rules having been changed under the Democratic leadership to require only a 51-vote majority to approve a nominee, the possibility of many such lifetime appointments looms large.
The nonprofit role in this process may not seem clear, as the complexity of courts and lawsuits seems distant from the urgency of daily work. But, while nonprofits work with immigrant and refugee populations, federal courts are making decisions on the Trump administration’s Muslim travel ban. As nonprofits work for clean air and water and promote science-based climate change strategies, federal courts are making decisions about environmental protections, oil drilling, and federal land protections. As nonprofits work on healthcare, education, and issues of equality and equity, federal courts are making decisions that impact this work—from minimum wages to who makes decisions about what is covered by healthcare and who businesses can hire and fire.
The Supreme Court hears about one percent of the cases that are appealed to it. Most settled law happens in the lower federal courts, and these are the vacancies that will, like the Supreme Court, be filled with judges who will hold lifetime positions. “Many, many are in the pipeline,” Mr. Trump said of his nominees, promising that “we will set records in terms of the numbers of judges.” The conservative leanings of the source organizations that are recommending these judges and their support for corporate deregulation, tax deregulation, and other laws that influence how nonprofits sustain themselves should make who these nominees are a priority for the nonprofit sector.
Both Trump and McConnell need a “win” with their conservative base. and it is unlikely to come via legislation on healthcare reform or tax reform. As reported in the New York Times, the courts offer an alternative path for conservatives to score a win and build power. By filling a large number of federal court vacancies with conservative judges, their ideology and judicial activism could hold sway for years to come.
As the nonprofit sector grapples with a changing federal landscape, finding a voice on lifetime appointments to the federal courts may become a part of the portfolio of actions that need to be taken. Fortunately, there is nonprofit leadership working on these issues. The Alliance for Justice, Center for American Progress, National Council of Jewish Women (through their BenchMark Campaign), People for the American Way, Why Courts Matter, and others are sources for both information and means of taking action. A network of state-level Courts Matter coalitions also exists and offers training, information, and ways for nonprofits to weigh in at the state level. The enthusiasm of President Trump and Mitch McConnell at the prospect of filling these judicial vacancies should raise concerns with nonprofits as to just what the ramifications might be—now, and 40 years down the road.—Carole Levine