Hi, and welcome back to a special early edition of Trump Watch! Even without going anywhere for the Fourth, I'm looking forward to sitting outside and accomplishing absolutely nothing but listening to my neighbors set off fireworks—which not everyone is thrilled about. Send your long weekend plans to [email protected], and follow me on Twitter at @jacq_thomsen.

Sen. Cory Booker, D-New Jersey, speaking during a Senate Judiciary Committee confirmation hearing, on Nov. 13, 2018. Photo: Diego M. Radzinschi/ALM

Where, Oh Where Are the Minority Trump Judges?

When Senate Judiciary Committee member Cory Booker spoke at a hearing this week about creating new judgeships, he wasn't as concerned about potential new seats as he was about who might fill them.

"I just want to start in with some of the things that Sen. Hirono was hitting upon, just about the troubling lack of diversity overall on the federal judiciary," Booker began. "It's sort of stunning to me, and we see a slant back towards a way away from diversity over the last three years under this administration."

Booker, the only African American man on the panel, noted that under former President Barack Obama, there was a significantly higher percentage of judicial nominees of color and female jurists. But he said under Trump, the "judiciary is sliding much more away from gender and race diversity."

Testifying before the committee that day was U.S. District Judge Brian Miller, who is African American and sits on the Eastern District of Arkansas. Miller at first declined to elaborate on his personal position on diversity on the bench, saying the Judicial Conference, who he was representing, leaves the decisions of who sits on courts up to the political branches.

"Maybe you could give your opinion just in terms of the experience of judges," Booker pressed. He pointed to Thurgood Marshall, the Supreme Court justice who earlier in his career founded the NAACP Legal Defense Fund and won landmark civil rights cases like Brown v. Board of Education and Shelley v. Kramer. "What's amazing is that the backgrounds of our judges have become remarkably monolithic, we see a vanishing few people join the federal bench who have spent their time working for nonprofits, advocating for the rights of the disadvantaged," the senator added.

"Senator, I would tell you that experience means something," Miller replied. "And I will tell you, and I would be remiss if I didn't say this—my great-grandfather, he was a former slave, Abraham Miller. He died about five blocks from this courthouse, where he lived on Beech Street here in Helena, Arkansas. I live four blocks now from where he died. My family has spent over 100 years in this community." Miller said he chose to remain in Helena when he was approved for the federal bench, rather than move to Little Rock where another federal courthouse is located.

"So you asked me about experience, and you asked me about my personal experiences and do I bring something to the bench, and do various people from different backgrounds bring something different to the bench. I would have to tell you yes, I can't tell you no," Miller said. "But as far as who gets chosen for these positions, that is the prerogative of the president and it's up to the Senate to then either confirm the person or not."

The conversation between Booker and Miller took place just days after the Senate confirmed Trump's 200th federal judge—Cory Wilson, to the U.S. Court of Appeals for the Fifth Circuit. A recent Bloomberg Law analysis shows that Trump has not nominated a single black appeals judge, despite Wilson being the 53rd appellate jurist confirmed under Trump.

Civil rights leaders also raised diversity concerns in urging senators to oppose Wilson's nomination. He is the sixth judge appointed by Trump to that bench, and the 14th white jurist out of the court's 17 active judges to sit on circuit. Five of those Trump nominees are white, the sixth being Judge James Ho, who is Asian.

The Fifth Circuit is in a majority-minority jurisdiction—meaning the vast majority of the court doesn't look like the minorities who will be most directly impacted by their rulings. And Wilson has previously spoken out against topics like voting rights, which disproportionately impact Black Americans (Wilson has said he made those remarks in the context of being a politician and commentator, and those comments would not guide his rulings from the bench.)

At the same time, many of Trump's judicial nominees are young, white men—meaning the portion of the court he's worked to reshape is set to look that way for decades to come.

What Booker and Miller (a George W. Bush appointee) discussed this week are the importance of different lived experiences—how different individuals, based on their race, ethnicity or other status have divergent experiences in this country that can guide their future choices. With a less diverse judiciary, the perspectives on the bench can be more similar than different.

"The nominees that we're seeing from this administration are extremely young, and these are lifetime appointments. So we will likely see these folks on the bench for the next 40, 50 years," Lisa Cylar Barrett, the director of policy at the NAACP Legal Defense and Educational Fund, said ahead of Wilson's confirmation. "And they will be making decisions about voter ID laws, about whether a case is strong enough to bring various civil rights claims. They'll be making decisions about employment matters and who has access to health care, and all of those things will have an impact for a number of years. So they're not just impacting the lives of all of us, but also our children and possibly their children."

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Could the Clock Run Out for the House on Mueller Grand Jury Info?

The U.S. Supreme Court said this morning it will take up the House's lawsuit seeking grand jury materials redacted from Special Counsel Robert Mueller III's report—but with arguments not starting until October and the justices notorious for not issuing high-profile rulings until the end of their term in June, it may prove too little, too late for Democrats.

Trump Justice Department lawyers went to the justices after a divided panel on the U.S. Court of Appeals for the D.C. Circuit ruled members of the House Judiciary Committee could obtain the redacted grand jury details to determine whether to start another impeachment proceeding against the president. That appeals court ruling affirmed a judgement from Chief U.S. District Judge Beryl Howell in D.C.

But granting cert could be a fatal blow for the House members, as it keeps the materials under seal in the meantime. If Trump loses reelection in November and the ruling isn't issued by then (it won't be) or the inauguration, it could effectively moot the case. It's pretty hard to say you need secret information for impeachment if the person you want to impeach isn't in office.

The justices are also set to hand down their ruling on whether the House can subpoena banks for Trump's tax records—meaning lawmakers will have more breathing room for next steps after that opinion lands. But with 240 days left to go before the election and other pressing matters taking up Congress's attention, like the deadly and spreading pandemic, it could also prove to be a tight squeeze—assuming the ruling is in their favor in the first place.

So NOW You Care About the Supreme Court

Liberals are the first to admit that they have failed to make the judiciary an effective campaign issue in the past. Progressives are now hoping to turn that around, and this week launched a campaign to push voters to think about the Supreme Court when they're casting their ballots.

The Supreme Court Voter Project is aimed at educating Americans, particularly progressives, about the rulings Trump's nominees on the Supreme Court have issued and why they believe it's important for voters to care about the court. They're starting off with a $2 million ad buy in several swing states, training activists and launching an online forum where people can submit testimonials about the real-life impacts they've experienced from the rulings.

"Right now we have a unique opportunity to mobilize progressives and to take back the court," Sen. Elizabeth Warren, one of the project's supporters, said at a press briefing this week.

As I reported earlier, conservatives are getting ready to campaign on the courts again after losing several major cases at the Supreme Court so far this term, including on abortion restrictions, DACA and LGBTQ rights. This new progressive project will have to face off against that conservative machinery in pushing the court on voters.

What We're Reading

>> NY Appeals Court Keeps Block Against Mary Trump in Book Fight, but Lifts It for Her Publisher: "Scheinkman found that, while anyone can enter into a confidentiality agreement, courts are 'not necessarily obligated' to enforce such agreements….'Drawing the appropriate balance may well require in camera review of the book sought to be enjoined … the legitimate interest in preserving family secrets may be one thing for the family of a real estate developer, no matter how successful; it is another matter for the family of the president of the United States,' Scheinkman wrote." [New York Law Journal]

>> 'Failure Is Striking': Trump-Tapped Judge Throws Out Administration's Asylum Restriction: "Kelly slammed DOJ attorneys for leaning heavily on an October 2018 Washington Post article in making that argument, finding that the single newspaper article did not provide evidence for their record and there was little other evidence to support their claims….'At bottom, as plaintiffs point out, defendants—'despite studying migration patterns closely'—have 'failed to document any immediate surge that has ever occurred during a temporary pause in an announced policy.' That failure is striking,' Kelly wrote." [National Law Journal]

>> Trump hoping for Supreme Court vacancy as way to boost a flagging campaign: "It's considered unlikely that members of the court's liberal wing—including its two oldest justices, Ruth Bader Ginsburg and Stephen Breyer—would retire while Trump remains in office. That has led to speculation surrounding the two oldest Republican appointees, Clarence Thomas and Samuel Alito—though any hint of their future plans remains closely held." [CNN]

>> Supreme Court clears Trump administration plan to resume federal executions: "The justices' routine order list issued Monday morning turned down an emergency application by four death row inmates whose lawyers contend that the plan to resume federal executions violates a federal law that appears to link the method of execution to that used by states." [Politico]

>> Senators See Path for Bipartisan, Election-Year Deal on More Judges: "Senate Judiciary Committee Chairman Lindsey Graham and ranking member Sen. Dianne Feinstein were both in favor of adding more Article III judges…Graham also noted that, during a presidential election year with no knowledge of which party will get to choose judicial nominees, 'maybe this is the best time to do it because nobody knows the outcome and we all know we need more judges.'" [National Law Journal]

>> Trump's attorneys withdraw claim he can't be sued based on residential status in Bergdorf Goodman rape case: E. Jean Carrol's attorney Roberta Kaplan "noted that in a conference call with the country's governors on June 1 regarding nationwide protests over the death of Minneapolis man George Floyd, Trump made multiple references to Manhattan and at one point said that he still lived there….Trump's lawyer Patrick McPartland officially withdrew the claim Monday that he couldn't be sued based on his residential status and the case will move forward." [New York Daily News]

That's it for this week's Trump Watch! Have a good holiday and stay safe, I'll be back next week