Earl Ofari Hutchinson
The name Brett Kavanaugh will be a household name when the titanic fight over his nomination to the SCOTUS begins in earnest when his name formally comes to the Senate for confirmation. Democrats will go to the barricades to paint him as a dangerous Antonin Scalia mold judicial reactionary who will decisively and dangerously tip the delicate liberal-conservative court balance on SCOTUS wildly to the right for years to come. The likelihood is that he will. It’s a battle that must be fought.
But who knows names such as L. Steven Grasz, Kyle Duncan, John K. Bush, Ryan W. Bounds, or Paul B. Matey? The names almost certainly draw blanks with most Americans. They don’t with Trump, GOP senators, the right-wing Heritage Foundation and the Federalist Society. They, and dozens of others, are among the pack of Scalia clone lower court judges that were carefully vetted for Trump by the two ultra-conservative judicial watchdog groups.
Most have been confirmed with little public fanfare and even less public notice. They have in almost all cases been confirmed despite the loud objections of Democratic senators from their home states who once had much say-so with their use of the so-called “Blue Slip” challenge to a politically and ideologically objectionable judicial pick. In the past that might have been enough to kill a judiciary pick.; not anymore, Senate Majority Leader, Mitch McConnell, and GOP Senate leaders have simply ignored them and confirmed the objectionable Trump picks anyway.
At last count, there were dozens of them. They now make up one in seven of the judges in the federal judiciary nationally. There will be more to come as future vacancies open and Trump can nominate anyone he wants who meets the Federalist Society’s hard right ideological litmus test with almost no chance that they will be shot down in the Senate.
So, that means that a judge sch as Kyle Duncan, a Trump pick confirmed for an Appeals court spot, can blithely declare that “same sex marriage” puts in mortal peril the nation’s “civic peace.” Or, another Trump pick can rail at “race focused groups” with virtual impunity from being knocked out the judicial consideration box for his extremist views. Or, there’s Judge Bush who spun every racist and crank birther lie about former President Obama as a one-time blogger. Then he double downed on that by lying when called out on his birtherism during his confirmation hearing. It didn’t matter he, as just about all the others, were confirmed anyway.
These are the judges who do far more than the Supreme Court can to impact, mangle, and entomb law and public policy for decades to come. They have a lifetime appointment. They dwarf the number of cases that the Supreme Court will ever hear, roughly 60,000 a year to the Supreme Court’s roughly 75 cases. These judges are the real judges of last resort for a controversial legal and impactful case. Their rulings are the ones that stand as binding law for not just years, but potentially generations to come. These judges are anything but non-partisan and objective. Many of them are just as hidebound politically partisan as a Clarence Thomas or Gorsuch. This partisanship often comes through in their rulings and opinions on hot button cases that involve civil rights, civil liberties, the environment, and what corporations can and can’t do.
A 25-year study by George Washington University, from 1970 to 1994, found that by a wide margin Republican-appointed judges turned back challenges by individuals and environmental groups challenging decisions of the Environmental Protection Agency in in most of cases. Democratic-appointed judges by contrast accepted challenges in the majority of cases. The study was done almost 20 years ago, and the numbers would almost certainly be the same if not higher in assessing cases that even more ideologically bent federal appeals court judges have heard in the past two decades or tossed in everything from the environment to civil rights.
Trump and the conservative legal and public interest groups know this. He quickly recognized that given his unfettered license to appoint and get confirmed to the federal judiciary whomever the Federalist Society told him to plop on the benches, he could get a cheap and easy political victory. He could brag to his base and the GOP that he kept his promise to stuff the judiciary from top to bottom with hordes of Scalia judicial clones. Equally important, he can position hardline conservative legal guns on the lower courts who will provide a choice pick of right-wing judicial warriors he can choose from when more SCOTUS vacancies open.
It’s scary. However, while the Democrats are virtually powerless to stop the Trump hard right pack of the federal judiciary, they can and must continue to try to keep the public’s eye on Trump’s wave of dangerous ideologues on the lower courts. That is until they can stop that tide.
Earl Ofari Hutchinson is an author and political analyst. He is the author of the forthcoming Why Black Lives Do Matter (Middle Passage Press). He is a weekly co-host of the Al Sharpton Show on Radio One. He is the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.