'Politicians in Robes': Democrats Launch Push to Counter Conservatives' Judicial Strategy
"Our federal courts risk becoming little more than an arm of the Republican Party's big donors," the Senate Democrats' report reads.
May 27, 2020 at 01:13 PM
6 minute read
Senate Democrats are going after conservatives' influence over the federal judiciary, but it's unclear how they plan to counter the immediate impact of President Donald Trump's wave of judicial nominees.
The lawmakers on Tuesday released a report they said marks the start of a campaign on conservatives' takeover of federal courts, which the document alleges is "the product of a long-term strategy to influence judicial selections and outcomes, which is well-funded by millions of dollars in anonymous, special-interest money."
Senate Judiciary Committee member Sheldon Whitehouse of Rhode Island, Senate Minority Leader Chuck Schumer of New York and Democratic Policy and Communications Committee Chairwoman Sen. Debbie Stabenow of Michigan are behind the report, titled "The GOP's Big Money Assault On The Constitution, Our Independent Judiciary, And The Rule of Law."
The report is arguably the strongest formal stance Senate Democrats have taken so far against Republicans' approach to the courts, an area where conservatives have long dominated but liberals have lagged.
The report promises that Senate Democrats will come up with "legislative solutions" in the near future to address what they described as "too much dark money" around the courts, as well as future reports to spotlight the conservative influence.
Schumer, Whitehouse and Stabenow on a call with reporters Tuesday cast their findings as the first step toward exposing and changing conservatives' influence on the courts. However, with Trump tapping nearly 200 Article III judges since taking office, it's unclear exactly how this effort will counter that immediate impact.
The report acknowledges that conservatives have been homing in on the courts for 50 years. And with Republicans controlling both the White House and the Senate, Democrats are limited in their tools to block nominees.
When asked by a reporter how Democrats would counter Senate Majority Leader Mitch McConnell of Kentucky if he tried to confirm a justice to the Supreme Court ahead of the November elections, Schumer said "public pressure" could play a role, after McConnell blocked D.C. Court of Appeals Judge Merrick Garland's nomination to the high court. "There will be tremendous pressure even on Republican senators, many of whom are very vulnerable, not to go along," the top Democrat said.
Tuesday's report took direct aim at the U.S. Supreme Court under Chief Justice John Roberts, where conservatives now hold a 5-4 majority. It refers to the court's conservatives as the "Roberts Five" and claims they have "undone decades of precedent and bent the law toward the interests of the rich and powerful."
"Now, with the addition of two hundred life-tenured Trump judges—more ideologically extreme and less experienced than any crop of judges in our nation's history—our federal courts risk becoming little more than an arm of the Republican Party's big donors," the report reads. "It has become abundantly clear in the Roberts era that the idea that Federalist Society-approved federal judges are umpires in an honest game with rules that are fair to all Americans regardless of wealth, race, gender, or sexual orientation is a dangerous fiction. The reality is that in cases with political implications, these judges too often behave as politicians in robes, inflicting lasting harm to basic principles on which our country was founded."
And it targeted the conservative Federalist Society for its role in selecting judges for Trump to nominate. The Federalist Society has said it is not directly involved in picking the nominees and does not take official partisan stances, but Tuesday's report alleges the group "has effectively become a judicial lobbying interest group."
"As political scientists and journalists have documented, it provides the nerve center for a complex and massively funded apparatus—composed of think tanks, law school centers, policy front groups, political campaign arms, and public relations shops—all designed to rewrite the law according to the political orthodoxy of Federalist Society donors," the report reads. "Under Trump, the group has all but assumed complete control over the administration's judicial selection and confirmation process, embedding its members in the White House and on the courts."
The report further spotlights the "dark-money" donors behind conservatives' efforts to touch the judiciary, highlighting the different organizations involved in shaping the right-wing approach to judicial nominees and courts like the Judicial Crisis Network.
The report also went after McConnell for prioritizing judicial confirmations in the Senate over passing legislation.
"Confirmation has become virtually automatic—a step in an assembly line finely tuned to achieve political and policy results through the judiciary," the report reads. "As a result of Senate Republicans' abdication of their constitutional duty, Trump's judicial nominees are younger, less experienced, and more ideologically extreme than any president's in history, and less diverse than any president's in decades."
The report is sure to prickle conservative judicial groups, who have argued they are doing nothing wrong in pushing their picks for open judgeships.
In an emailed statement, a spokesperson for the conservative Judicial Crisis Network sought to flip the script on Democrats, saying they "look forward to the Democrat report on the influence of the largest 'dark money' enterprise in America, Arabella Advisors, a multi-billion dollar dark money operation providing support and services to liberal groups like New Venture Fund, 1630 Fund, Demand Justice, Center for American Progress, and the League of Conservation Voters."
When asked about groups like Arabella Advisors during the call, Whitehouse said Democrats are "trying to undo dark money."
Senate Judiciary Committee Chairman Lindsey Graham of South Carolina recently defended Trump's pick for a seat on the U.S. Court of Appeals for the Fifth Circuit, Cory Wilson, after Democrats on the panel went after him over his conservative record, including attacks on the Affordable Care Act.
"The idea that you would be a conservative Republican is a bad thing only if you're a liberal Democrat," Graham said at the hearing last week. "Who do you think we're going to pick? We're going to pick people that think like us that will be good judges."
Read more:
Republicans Hire Chuck Cooper to Challenge House's Pandemic-Era Proxy Voting Rules
'Acrimony Between the Branches': How the Trump Lawsuits Could Shape Future House Legal Fights
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