* * *
Judges have repeatedly indulged in similar behavior in court cases involving everything from sanctuary cities to the military’s transgender ban. The damage to the judiciary has been profound and will be lasting.
Once a court plows new and extralegal ground, they set a precedent. Other courts feel free to take the same steps, or even expand on those excesses. Absent direct Supreme Court orders to cease and desist, we can assume Resistance judges will continue to ignore rules on standing or constitutional avoidance or national injunctions. Even some liberals are now coming to worry about this violation of judicial norms, as conservative judges feel more emboldened to adopt the same tactics. Several district judges are under pressure, for instance, to issue nationwide injunctions against the remaining policies of the Obama era—including Obamacare and environmental rules.
The Resistance has also done enormous damage to the reputation of the judiciary, in particular to the Supreme Court. Their flawed legal approach, their constant state of “emergency” (as Justice Thomas put it), has forced the high court to intervene again and again. Each intervention puts the Supreme Court in the hot seat and makes it even more controversial. The Court has had no choice but to step in and settle questions that lower courts have forced to the forefront. But Trump critics use each of these occasions to spotlight Trump’s two Supreme Court nominees—Gorsuch and Kavanaugh—and to suggest all of the Court’s conservative members are working as Trump’s lackeys. Every one of these “faux” legal emergencies helps to chip away at the Supreme Court’s authority.
Resistance judges begin from the position that Trump is operating outside of norms. The irony, as Blackman has noted, is that their reaction has been to operate even further outside norms. But it isn’t the courts’ job to judge Trump’s behavior. Their job is to interpret the law. Judges don’t get to ignore the rules simply because they loathe the president. And their decision to insert political animus into our judicial system is undermining American belief in a blind Lady Justice.
Chapter 9
Ambush
The Resistance repeated one name after the election with bitter regularity: Merrick Garland. Obama nominated Garland to the Supreme Court in March 2016, after the unexpected death of Justice Antonin Scalia. Senate Republican Leader Mitch McConnell refused to give Garland a hearing, citing the “Biden Rule.” Joe Biden in June 1992 led the Senate Judiciary Committee, and he gave a speech in which he declared his opposition to considering any Supreme Court nominees in the run-up to a presidential election. McConnell adopted the same position, stating that the “American people” should “have a voice” in which president got to name Scalia’s successor.
Trump’s victory transformed the haters’ anger over Garland into pure fury. And it pushed Trump’s court nominations to the center of the Resistance effort. Outside activist groups mobilized to oppose each and every one of Trump’s picks. They were joined by Senate Democrats and jointly unleashed an unprecedented campaign of smear tactics and ambush politics. This degradation of the Senate confirmation process culminated in the circus that was Brett Kavanaugh’s nomination to the Supreme Court, an episode that South Carolina Republican Lindsey Graham would declare “the most despicable thing that I have seen in my time in politics.” The country had seen ugly Supreme Court battles in the past; “Borking” is a verb for a reason. But nobody had seen anything like this.
The haters wrecked much more than just reputations. Senate Democrats forced Republicans to invoke the “nuclear” option to kill the filibuster for Supreme Court nominations. They made a farce of the nomination process and destroyed the informal standards of the Senate Judiciary Committee. Members hid information from Chairman Chuck Grassley, broke committee rules, and slandered their colleagues—setting an undignified new standard for future confirmations. Outside organizations like the American Bar Association took blatantly partisan steps that undercut the role in the future for advisory groups in the nomination process. The Resistance further politicized the FBI, trying to force it into a new job of passing judgment on nominees. Activist organizations targeted individual Republican senators with extraordinary and ugly pressure campaigns. At one point, a Resistance group even tried to bribe Maine Senator Susan Collins, offering to trade political donations for a vote against Kavanaugh.
Overall, the speed with which Democrats rejected each of Trump’s picks did real damage to the integrity of the judiciary. They cast aside all the traditional metrics that we normally use to vet judges—intelligence, experience, reputation—in favor of bald political criteria. That approach reinforces the dangerous and growing public view that judges are political actors—partisans who are incapable of fairly adjudicating legal disputes. Nothing Trump has ever done as a candidate or in office has approached the damage these Resistance antics have done to the judicial branch.
* * *
Neil Gorsuch, if anything, had it easy. Trump nominated the 49-year-old Coloradan to the Supreme Court on January 31, 2017. The nomination wasn’t that big of a surprise. Trump had added Gorsuch to his list of potential Supreme Court picks in September 2016, and by January, Gorsuch was known to be among the frontrunners.
Gorsuch was an inspired pick in part because he was so uncontroversial. He was a star on the Tenth Circuit Court of Appeals, where he was appointed in 2006 by George W. Bush. He was relatively young, brilliant, and known in legal circles for his crisp writing. His long paper trail—showing opinion after opinion that relied on textualist principles—was reassuring to conservative groups and GOP senators. Republicans had been sorely disappointed by prior Supreme Court picks like Sandra Day O’Connor and Anthony Kennedy, who had drifted left after their confirmations. Gorsuch looked sound, in particular on key issues like religious liberty, gun rights, free speech, and skepticism of the administrative state.
Democrats couldn’t find anything of substance in Gorsuch’s stellar legal record with which to bash him. He was bright, sober, and undoubtedly qualified for the Supreme Court. The left’s frustration with this résumé spilled through in a speech by Senate minority leader Chuck Schumer in the run-up to Gorsuch’s hearing. Schumer whined that even though Gorsuch “may act like a neutral, calm judge,” and that “he expresses a lot of empathy and sympathy for the less powerful,” he was in reality a judge that “harbors a right-wing, pro-corporate, special-interest agenda.” And for a time, Democrats tried to run with that theme—claiming that Gorsuch too often ruled in favor of big companies. It was an asinine argument; judges are supposed to look at facts and law, not relative wealth or power.
Democrats’ bigger problem was that the Gorsuch paper trail showed that he was, in fact, a mainstream conservative judge, known as a consensus builder. Jeff Harris at Kirkland & Ellis did an analysis of the 800 or so opinions Gorsuch wrote on the Tenth Circuit. Only 1.75% (14 opinions) drew dissents from his colleagues. Put another way, 98% of his opinions were unanimous, and on a circuit where 7 of the 12 active judges had been appointed by Democratic presidents.
Despite this distinguished record, the Resistance demanded Senate Democrats bring Gorsuch down. And they did try a late hit. In early April, Politico ran an article suggesting Gorsuch had once plagiarized a few sentences. But they were laughable examples, and even one of the academics Gorsuch had supposedly plagiarized came out to dismiss the claim as nonsense. In growing desperation, outside groups including labor unions and abortion activists sent letters to the Democratic leadership, demanding it filibuster Gorsuch and subject him to a 60-vote threshold.
This was unprecedented. Republicans weren’t happy with an Obama presidency, and many Senate Republicans didn’t like his nominees to the Supreme Court. Yet the GOP, which was in the minority at the time, never filibustered an Obama Supreme Court pick. Quite the opposite: Most Republicans took the view that Obama had every right to choose his nominees, and that the only question was whether they were qualified. Obama’s first nominee, Sonia Sotomayor, was confirmed by a vote of 68–31 in August 2009. Obama’s second pick, E
lena Kagan, was confirmed 63–37 in August 2010.
Democrats were now in the minority, and before Gorsuch had even had a hearing, Oregon Resistance Senator Jeff Merkley called for his party to filibuster. And sure enough, in early April all but four Democrats voted against advancing his nomination to a final vote. It was an extraordinary new standard. A Republican president, duly elected, would no longer be allowed to install even a highly distinguished judge on the Supreme Court without 60 Senate votes. And Democrats would not provide any votes for anything less than a liberal judge.
McConnell had no choice but to go “nuclear” and get rid of the filibuster for Supreme Court nominations. Democrats had made this an easy call; Democratic Senate leader Harry Reid had been the first to attack the tool. He’d in 2013 eliminated the filibuster for lower-court nominees and Cabinet members, to make it easier for Democrats to confirm Obama picks.
The Democratic obstruction to a highly qualified nominee boomeranged on the party. McConnell’s decision to get rid of the filibuster for the high court meant that Trump had more freedom in the future to nominate even more conservative judges. Moreover, the Resistance’s unreasonableness united Republicans. The GOP Senate up to that point had been a hotbed of fractiousness. Republicans couldn’t agree on Trump, on health care, on taxes. And more moderate GOP senators would normally have blanched at taking such an extreme step as nuking the filibuster. But the left had made clear with its antics that it intended to block any Trump pick to the Supreme Court, and Republicans understood that the only way to return the Senate to its more traditional “advice and consent” role was to go nuclear. Senate Republicans voted en bloc on April 6 to lower the threshold for ending debate on Supreme Court nominees to 50 votes. Gorsuch the very next day was confirmed 54–45. Only three Democrats were ultimately willing to vote for this most distinguished legal jurist.
To be clear: Democrats forced McConnell to abandon the Supreme Court filibuster. And to be clear, that move could have alarming consequences for the future. Trump’s two nominees to the Supreme Court have both been eminently qualified, mainstream jurists. But the end of the filibuster makes it easier for a future president to nominate a radical, since it now takes but 50 votes for confirmation. Democrats claim to want the Supreme Court to be a moderating influence in the U.S. political system. But their actions continue paving the way for immoderation.
* * *
The Gorsuch confirmation galvanized the Resistance. Trump haters were livid that Senate Democrats had not done more to destroy the nominee. And the anger mounted as Trump announced a string of lower-court nominees, and McConnell’s Senate quickly confirmed them. Resistance leaders began mobilizing their masses specifically around the courts. A New York Times piece in May 2018 about one of these efforts focused on a new organization—Demand Justice—created entirely to “instill” a “zeal” in “progressive voters on issues related to the federal judiciary.” The goal was to inflame the liberal troops, to put extreme new pressure on Senate Democrats to obstruct or destroy Trump nominees.
The pressure helped further demolish Senate traditions. Democrats couldn’t stop nominees; the filibuster was gone for all judicial appointments. But they could slow things way down. Senators began demanding cloture filings for every nominee—no matter how uncontroversial. That demand meant that each Trump pick—even after all the usual vetting and hearings—would be subject to a two-day waiting period and then thirty hours of debate. Democrats didn’t actually show up to “debate” anything about the nominees—the cloture demands were simply time wasters. They had a side benefit for Democrats, too, in that they halted other business, slowing the GOP’s policy agenda.
Minority parties have always had the ability to subject the chamber to such foot dragging, but in the past, cloture demands were used more as a negotiating tactic. In 2013, for instance, Senate leader Reid cut a deal with minority Republicans. He’d give them more opportunity to offer amendments to legislation, in return for Mr. Reid’s ability to limit post-cloture debate for most nominees to eight hours. That deal let Reid confirm dozens of judicial nominations. But it expired in 2015, and Schumer, the new Democratic leader, now in the minority, refused to renew it. Democrats continued to use cloture for sheer and bloody-minded obstruction.
Democrats also put cloture demands on Trump executive nominees, including the most inconsequential of administration jobs. By April 2018, Democrats had demanded 128 cloture votes, including for the first time in history on 42 executive-branch positions. McConnell cited as an example the insane obstruction of Ronald Batory, Trump’s nominee to the Federal Railroad Administration. Batory had worked in the industry for decades, and nobody opposed his nomination; he was ultimately confirmed on a voice vote, meaning no Democrat ultimately objected. Nonetheless Senate Democrats blocked him from getting that vote for more than 200 days. The over-the-top cloture demands ultimately provoked Republicans in April 2019 to unilaterally change Senate rules, limiting debate for most executive and judicial nominees to two hours.
Democrats also started refusing to return “blue slips” to the Judiciary Committee. Blue slips are a bipartisan tradition, a way for senators to object to judicial nominees from their home state. The blue slip system was designed to improve the nomination process, by allowing senators to use their knowledge about home state judges to better inform White House picks. But Democrats instead turned the tradition into a new form of veto over all Trump judges. They uniformly refused to return blue slips to the committee even for highly qualified nominees and insisted this meant that the Judiciary Committee could not proceed to a vote.
An early example of this tactic came from Minnesota Democrat Al Franken. He refused to return a blue slip for David Stras, a supremely qualified Minnesota Supreme Court judge whom Trump nominated to the Eighth Circuit Court of Appeals. Stras had earned the highest rating from even the liberal American Bar Association and, like Gorsuch, had a flawless legal record. Franken complained instead about the people Stras admired. He grumbled that Stras early in his career had “worked as a law clerk for Justice [Clarence] Thomas,” and had also once spoken about how “the jurisprudence of Justice [Antonin] Scalia helped to shape his own views.” Since when was admiring a Supreme Court justice a disqualification for the federal judiciary?
Liberals then went ballistic when Judiciary Chairman Grassley in late 2017 decided to proceed with Stras’s nomination despite Franken’s missing blue slip. They ignored the fact that few heads of the committee had ever treated it as an end to a nomination. Democrat Joe Biden, for instance, only required an administration to consult with home state senators, regardless of what later happened with blue slips. Republican Strom Thurmond gave a deadline for returning the slips and often proceeded whether he got them back or not. Grassley spent most of 2017 attempting to preserve the blue slip tradition. But when it became clear Democrats were using blue slips for obstruction rather than for quality discussion, he had no choice but to ignore them.
Democrats were proud of all this resistance, but they also created new practices that hurt the confirmation process and will hurt their own side at some point. Both parties should want the Senate actively engaged with the White House in judicial nominations, providing “advice”—as the Constitution envisions. By turning the blue slip into a cudgel, Democrats destroyed that line of communication. And Republicans will not forget this obstruction. A basic Washington rule is that parties build on each other’s worst behavior—not their best. The next Democratic-led Senate may face even worse obstruction from a minority GOP. Americans are already frustrated that Washington is too often in gridlock. A Senate held hostage to permanent procedural obstruction is a Senate unable to do the people’s work.
* * *
The Resistance got the news they’d been most dreading on June 27, 2018: Justice Anthony Kennedy was retiring after thirty years on the Supreme Court. The announcement sent Trump haters into meltdown.
As much as the Gorsuch confirmation rankled, it had also been a bit
of a wash. Republicans had replaced one conservative Supreme Court Justice (Scalia) with another (Gorsuch). The Kennedy retirement was something else entirely. Kennedy was a Reagan appointee but had become a fickle judge. The Court’s swing vote, he joined liberals on the Court on big cases with almost as much frequency as he joined conservatives. Trump’s nomination would guarantee a solid conservative majority, potentially for years to come. And Trump moved quickly, nominating 53-year-old Brett Kavanaugh on July 9, 2018.
Kavanaugh was another inspired pick, a model Supreme Court nominee. He’d gone to Ivy League schools; he’d clerked for Kennedy; at the time of his nomination he had already served for twelve years on the important D.C. Circuit Court of Appeals. Over that tenure he’d written more than 300 opinions, at least 10 of which had been upheld by the Supreme Court. And like Gorsuch, he was a mainstream conservative jurist. Of the many cases and orders that Kavanaugh took part in while at the D.C. Circuit, 97 percent of them were unanimous. As we at the WSJ wrote at the time of his nomination, Kavanaugh was “the center-right version of his colleague on the federal bench, Merrick Garland, whom Democrats continue to laud as an ideal Justice.”
His nomination was nonetheless met with (predictable) hysteria. Progressive groups decried him as “extreme,” “dangerous,” and “outside the legal mainstream.” U.S. Senate Democratic Whip Dick Durbin declared him a “far-right jurist” who would allow “the worst impulses of the Trump presidency” to go “unchecked.” The Democratic National Committee claimed that with “Brett Kavanaugh on the bench, Roe v. Wade, affordable health care, labor unions, and civil rights will all be on the chopping block.” The NAACP said a Kavanaugh confirmation spelled the end of “equal opportunity in education, employment and housing,” as well as “further exclusion of communities of color” from “our democracy” and flourishing “racism” in the “criminal justice system.” And within moments of Trump’s announcement, Senate minority leader Chuck Schumer declared: “I will oppose Judge Kavanaugh’s nomination with everything I have.” Schumer hadn’t even bothered to read Kavanaugh’s record or meet with him. His declaration was proof that for Democrats this was not about legal qualifications; it was about thwarting Trump.
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