Things have been keeping me up at night lately. The latest thing to wake me up in a cold sweat at 4 AM was, of all things, judicial nominations. In case you haven’t noticed, Senate Majority Mitch McConnell has been working at a breakneck pace to put Trump’s judges on the federal bench. It’s pretty much all the Senate does these days.
Presidents of course are supposed to nominate people to the federal bench. It’s generally a good idea for the Senate not to tarry on these nominations as there are plenty of cases that need to be tried and in recent years federal case backlogs have been growing because of many judicial retirements. And that’s because until Trump came along, the Senate wasn’t confirming too many judgeships. Those they were confirming tended to bend toward the right side of the political spectrum.
To give you an idea of how bad it got, at the start of 2015, the last two years of Obama’s second term, there were 45 judicial vacancies. As more judges retired, Obama dutifully nominated 103 candidates, of which the Senate deigned to confirm just 22. During his last two years in office, Obama nominated 76 people. So there were a total of 98 candidates nominated by Obama, only 22 of who were confirmed. 54 nominations were returned. Effectively, less than a quarter of the nominees Obama forwarded to the Senate were confirmed in his last two years.
Obviously, Mitch McConnell was deliberately blocking these nominations, as he blocked Obama’s nomination of Merrick Garland to the Supreme Court. He was waiting for a Republican to win in 2016. Since then unsurprisingly things have picked up. After a slow 2017 where only 18 judges were confirmed (it took a while for Trump to nominate new people), 66 were confirmed in 2018 and through 7 more so far through March 2019. 91 judges that have been confirmed since Trump took office. That’s roughly four times the number that Obama got through in his last two years.
Unsurprisingly, there are no left-of-center justices being nominated or confirmed. Breaking with precedent like Mitch McConnell likes to do, he moved forward nominations that were disapproved by home state senators. Thus in the liberal 2nd Circuit which covers New York and New England, with the elevation of Judge Michael Park to the court, brought the number of Republican judges in the circuit to six. It is expected by the summer Republican judges will control the circuit court, meaning judges who disproportionately don’t have a mindset of the people they serve will be telling them what to do.
This stacking of the courts is having real world effects. Trump has plenty of reason to stack the courts because it is his “get out of jail free” card. He needs these judges to rule in his favor so he suffers no consequences for his many actions. For Republicans, it’s not so much saving Trump they care about as getting conservative judicial decisions. We got a preview of it this week when the U.S. Supreme Court broke with more than forty years of precedent in its Franchise Tax Board of California v. Hyatt decision, which overturned its Nevada v. Hall decision. Basically, the decision invalidates the idea that states have sovereign immunity for suits filed in other states. In our federal system, states are supposed to be sovereign, but not anymore. Justice Breyer basically asserted that this precedent will be used to overturn Roe v. Wade, which rests on a similar assumption.
Toward that end various red states have been chomping at the bits to outlaw abortion. They are competing against each other to come up with the most restrictive anti-abortion law, on the hopes that the Supreme Court will uphold it. Georgia’s recently signed fetal heartbeat law, which outlaws abortion if a fetal heartbeat can be detected (at about the sixth week of pregnancy, when lots of women don’t even know they are pregnant), seemed to be at the top of the heap. But then Alabama outlawed virtually all abortions, including in the case of rape or incest. Its only exception: if the mother’s life is in danger. Georgia’s law would make it a crime for a woman to get an abortion out of state, and with the Hyatt decision it looks like the Supreme Court won’t object. Women who get abortions out of states could effectively become fugitives.
Our nation appears to be on the cusp of becoming a variant of The Handmaid’s Tale. Soon, if some states have their way, an 11-year-old girl raped by her own father will be forced to carry a pregnancy to term and probably care for the child for life too. And just as the Fugitive Slave Act at one time allowed federal marshals to go into free states to return escaped slaves to their masters, it’s more than possible that women who get pregnant in Georgia but get abortions outside of Georgia may be hauled by federal marshals back to Georgia to spend thirty years in prison for their “crime” which was inflicted on them by someone else without their consent. Left off the hook, of course, are the men who got them pregnant in the first place. Women are becoming chattel again, thanks to men like Mitch McConnell.
That’s why I woke up in a cold sweat at 4 AM. By stacking the courts with judges who don’t care about the law or precedent, they are poised to turn our nation into the dictatorship that Donald Trump so desperately wants. Republicans of course are all for all of this. They don’t care about democracy. They don’t even believe in a republic. They simply want to control power now and forever through any means, and they are working the legal channels to legally appoint judges to ensure future judges will always act illegally. Moreover, there’s no clear way outside of revolution for changing this.
We should all be breaking out in cold sweats like me every night.