The GOP's Corruption of the Federal Judiciary

The rank corruption of some of the justices of the U.S. Supreme Court - including three of whom lied under oath during the confirmation hearings - has been in the news of late, as the ethical rules applicable to other federal judges are utterly ignored.  However, the corruption of the federal judiciary by Donald Trump and Senate Republicans extends far beyond the Supreme Court.  From U.S. district courts to U.S. courts of appeal and, of course, the Supreme Court, Trump and his lapdogs in the U.S. Senate appointed ideologues and unqualified individuals to the federal bench for life time appointments where damage can be done for decades. The striking thing about the most unfit of Trump's appointees is that they appear to believe that the rights of "life, liberty and the pursuit of happiness" applies only to themselves and those who hold similar extreme religious or political views. In their view, the rest of American society cannot be allowed to lead their lives based on their own beliefs and understandings of faith or even no faith.  Not surprisingly, a number of Trump's appointees were rated as "not qualified" by the American Bar Association and/or lacked the experience one would expect in a federal judge.  A column in the Washington Post looks at this rot within the federal judiciary and what can be done to lessen the damage going forward.  Here are excerpts:

The worst federal court decisions may not have come from the Supreme Court. If you are concerned about contempt for precedent, partisan hackery and judicial hubris, take a look at what district court judges have been doing.

There was U.S. District Judge Matthew J. Kacsmaryk’s atrocious ruling in April reversing the Food and Drug Administration’s 2-decades-old approval of the abortion pill mifepristone. He obliterated any notion of standing, ignored the six-year statute of limitations for challenging FDA approvals, spewed a raft of right-wing disinformation and ignored decades of medical data. The Biden administration is appealing the ruling.

And let’s not forget the unsupportable ruling from U.S. District Judge Aileen M. Cannon of Florida putting her finger on the scale to try to block the Justice Department from reviewing secret documents hoarded by former president Donald Trump. Cannon never had jurisdiction to hear the case (her ruling was overturned on appeal), invented a new category of protection for a former president and utterly ignored national security interests.

But not to be outdone, U.S. District Judge Terry A. Doughty in Louisiana, in a case involving government contacts with social media companies, “effectively issued a prior restraint on large swaths of speech, cutting short an essential dialogue between the government and social media companies about online speech and potentially lethal misinformation,” explained Leah Litman and Laurence H. Tribe in Just Security.

“Compounding that error,” Litman and Tribe wrote, “the district court crafted its injunction to apply to myriad high-ranking officials in the Biden administration, raising grave separation of powers concerns. And equally troubling is how the court’s order, which prevents the government from even speaking with tech companies about their content moderation policies, deals a huge blow to vital government efforts to harden U.S. democracy against threats of misinformation.” Tossing away standing, failing to find a smidgen of evidence of “coercion” and issuing a ludicrously overbroad injunction are not minor errors. They represent a leap into the legal abyss.

These three Trump-appointed judges betray their ideological fervor and lack of judicial restraint. Their radical rulings are indicative of the corruption of federal courts beyond the Supreme Court.

Trump populated the judiciary with underqualified ideologues, 10 of whom were rated unqualified by the American Bar Association. (In addition, they were overwhelmingly White and male; not a single African American judge was nominated to a circuit court.) Not all of the 54 circuit court judges and 174 district court judges he appointed are ideological kooks or partisan hacks, but the frequency with which outlandish rulings now pop up in high-profile cases suggests how extensive the damage to the credibility of the federal judiciary as a whole may be.

What can be done? First, the number of lower court judges should be expanded to reduce workload and court congestion, to improve diversity, and to dilute the impact of unqualified and intemperate judges. The number of lower court seats has not been expanded since 1990, when there were about 80 million fewer Americans.

Second, Democrats should end the use of “blue slips,” which allow senators to block consideration of a district court nominee in their states; Senate Republicans have abused the tradition to stop dozens of Biden’s reasonable nominees. Consultation with the Senate is one thing, but allowing the opposing party to veto judicial appointments is daft.

Most important, Democrats cannot let a single nominee from a GOP president go through without a detailed investigation of his or her rulings and philosophy, evidence of significant judicial experience and a minimum-qualified ABA rating. “It’s only for a district court” is a shoddy excuse for rubber-stamping a nominee unwilling or unable to abide by his or her oath and administer justice fairly. When nominees refuse to explain their views adequately or lack sufficient experience to allow a proper assessment of their legal principles and fidelity to precedent, they should be rejected.

Beyond the quality of judges, the controversy over nationwide injunctions issued by MAGA-friendly judges looms. There are times when an aggrieved party alleging harm from a regulation or statute needs injunctive relief. However, the practice of shopping for favored judges in far-flung one-judge divisions should end.

Congress has the power to set jurisdictional rules. Requiring all such cases be brought to district court in D.C. would at least ensure the case would be assigned to one from a diverse set of judges experienced with federal regulations and constitutional questions. Alternatively, Congress could require three-judge panels hear cases seeking injunctive relief against the federal government.

The country faces a crisis in credibility not only in the Supreme Court but throughout the federal judiciary. Democrats need to step up to expand and raise the caliber of lower court judges, end GOP vetoes on nominees and address the issue of nationwide injunctions. If not, the rule of law and democracy’s survival will remain at risk.