The ability to make nominations to lifetime positions on the federal bench is one of the great and sometimes underappreciated powers of the presidency. Yes, Supreme Court nominations are widely understood to be a big deal, but in the long run, filling district and appeals court openings may matter as much or more.
In the long history of presidents naming judges, there has probably never been a chief executive for whom this particular power has been more politically important than Donald Trump. It was central to the coalition that lifted him to office, and that will seek to reelect him next year despite likely impeachment and a long series of erratic, ideologically heterodox, and even criminal actions. Trump’s willingness to remake the federal bench into an instrument for a conservative constitutional counterrevolution is the glue that binds to him white Evangelical activists who can’t help but be disgusted by his heathenish character, Chamber of Commerce types brought up to regard his trade policies as anathema, and neocons and other “hawks” horrified by his abandonment of traditional GOP foreign-policy goals.
As Dahlia Lithwick rightly observes, all manner of Trumpian excess have been rationalized “for the judges”:
Back in 2016, when a lot of otherwise decent people pulled the lever to elect Donald Trump president, they claimed to have done it solely for the judges. By the same token, a good number of then–“Never Trumpers” have reverted to Team Trump, again, because of the judges. Members of the Trump administration, like his former White House Counsel Don McGahn, who have showed tiny filaments of courage in standing up to him for the rule of law, nevertheless silently allow Trump to fillet the Constitution and American prestige and influence abroad, and why? Because of the judges. If you’ve stuck with Trump for the judges until now, you are currently playing the dangerous game of “How Many More Judges Can They Ram Through Before Democracy Breaks?” The theory is that teeing up the murder of Kurdish allies and inviting foreign election interference is all worth it, because of the judges.
The keys to Trump’s judicial life-support system are preparation, speed, and stealth. He took office prepared to hit the ground running on judicial appointments by setting up the first fully outsourced vetting process ever, in the hands of Federalist Society and Heritage Foundation operatives that conservatives trusted. Speedy confirmations have been ensured by Senate Majority Leader Mitch McConnell, for whom, as Lithwick points out, this has become job No. 1 in the absence of any major legislative distractions. And underlying the whole game has been a stealthy dishonesty about the entire project, lest the large segment of the public who would be upset by, for example, the abolition of a federal constitutional right to choose abortion, might be alerted to the peril.
But some of Trump’s recent choices may blow his cover. It used to be generally understood that anyone expecting to obtain a lifetime judicial appointment had to get a minimal stamp of approval from the American Bar Association via a “qualified” rating. In eight years, Barack Obama did not move forward with a single nominee that was rated as “not qualified” by the ABA. In two and a half years, Trump has nominated five such judges. The fifth, Sarah Pitlyk, nominated for a district court position in Missouri, is impossible to understand as anything other than an ideological payoff to the pro-life groups from which she emerged. Yet the Senate is poised to confirm her this week as a trial judge, as Lithwick notes:
Pitlyk hasn’t generated much attention, despite the fact that she too has no trial experience whatsoever, which is what earned her the ABA’s not-qualified rating. “Ms. Pitlyk has never tried a case as lead or co-counsel, whether civil or criminal. She has never examined a witness,” the ABA said in a letter to the Senate Judiciary Committee …
Pitlyk’s primary legal work has consisted of attacks on abortion rights, tempered by attacks on constitutionally protected contraception rights, leavened by other attacks on abortion, and supported with her work defending David Daleiden — the author of a vicious smear campaign against Planned Parenthood, based on fake videos of Planned Parenthood officials appearing to negotiate the sale of aborted fetal body parts. These are all claims that were later debunked by a Republican-led House Oversight Committee. Criminal charges were brought against Daleiden. Yet Pitlyk’s biography proudly notes that she was “part of a team defending undercover journalists against civil lawsuits and criminal charges resulting from an investigation of illegal fetal tissue trafficking.” In last year’s Box v. Planned Parenthood, Pitlyk made the transparently false argument in an amicus brief that abortion and birth control are based in the eugenics movement and urged that: “The eugenic origins of the birth-control movement — the progenitor of the abortion rights movement — are well-established.”
In her Judiciary Committee hearings, Pitlyk blandly defended her unique background focused on reversing a 46-year-old constitutional precedent as just another time-honored example of lawyers engaging in advocacy work before joining the bench, as her Republican allies assailed the ABA as “biased.” Yeah, without question, you have to be “biased” to think a trial judge should have trial experience!
The bottom line is this: Having tossed aside any minimal vetting mechanism for federal judges other than that supervised by the Federalist Society, and with Senate confirmation turning into a high-speed party-line machine, we can expect a lot more judicial nominees like Pitlyk if Trump is reelected while his party maintains its hold on the upper chamber. At some point Republicans may even discard the stealth and get loud and proud about what they are doing — much as Trump himself did in 2016 when he broke an ancient taboo by promising he’d create a Supreme Court that would overturn Roe v. Wade. It’s one promise this inveterate liar is on course to keep, and that’s why people who should know better are toiling to keep him and his chaos in the White House until 2025.