U.S. JUDICIARY

1787's Promise to You:

1787 will only nominate judges with a high level of integrity, and an exceptional track record of competence and fairness. 1787 will NEVER nominate a judge based on his or her philosophy, ideology or political party.

A Special Thank You to American Judges!

 

Beginning on Election Day 2020 through the January 6th insurrection and its aftermath, honorable judges on all levels of the American court system protected this nation from multiple assaults on our democracy.  God Bless You All.

The day Donald Trump was elected to the presidency, he inherited an abundance of judicial vacancies.  This handed Republicans the opportunity of a lifetime — to mold the ideology of the federal court system in their own image.

 
Senate Republican leader Mitch McConnell seized on the chance: “I said, Don (referring to incoming White House counsel Don McGahn), we’ve got an opportunity here to have a huge long-term impact on the country.” 


According to Time magazine: “In one of his rare public appearances — a speech before the Federalist Society < a very powerful organization of conservative lawyers > at Washington’s Mayflower Hotel — McGahn joked that his team would work with two lists of potential nominees.  The first list contains ‘mainstream’ and ‘pragmatic folks.’  The second list, he said, includes judges who are ‘too hot for prime time … The kind of people that make some people nervous.’  'The first list we’re going to throw in the trash,’ McGahn said to laughter and applause.  ‘The second list, that’s the one we’re going to put before the U.S. Senate, because I know leader McConnell is going to get it done.”

 

Article III courts (i.e., currently the U.S. Supreme Court, the U.S. courts of appeals, the U.S. district courts and the U.S. Court of International Trade) are meant to be a check on the legislative and executive branches.  The most important thing is, to any and all extent possible, the judicial branch must be fair, impartial, and independent.

 

As Alexander Hamilton wrote in the Federalist Papers, 

“Independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humours which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information and more deliberate reflection, have a tendency in the meantime to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

That said, judges are only human, and the politicizing of the judicial branch is hardly a new phenomenon.  What does seem unusual — and was perhaps the scariest part of Donald Trump and Mitch McConnell’s epic court-packing plan — is how blatantly transparent certain conservatives have been about their political intentions and motivations.    

​Presidential candidate Donald Trump once told Breitbart News Daily, “We’re going to have great judges, conservative, all picked by Federalist Society.”  As promised, the Federalist Society was indeed highly instrumental in Donald Trump’s judicial nominating process.  Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett — plus many appeals court judges appointed during the Trump administration — were members or former members of the Federalist Society. 

The Washington Post reported that Don McGahn said to fellow Federalist Society members, “Our opponents of judicial nominees frequently claim the president has outsourced his selection of judges.  That is completely false.  I’ve been a member of the Federalist Society since law school.  Still am.  So, frankly, it seems like it’s been in-sourced.”

A law professor at Northwestern University, Steven Calabresi — one of the founders of the Federalist Society and the current chairman of the organization’s Board of Directors – released a memo in November 2017 titled Proposed Judgeship Bill.  To be fair, many people, including some Republicans, criticized the document.  However, we believe Calabresi’s ideas cannot be dismissed as inconceivable.

We are all Americans and, as such, we all certainly have the right to propose ideas.  That said, there is one aspect of Calabresi’s document that makes it highly concerning. 

The first part of the professor’s plan is to “pass a judgeship bill that would greatly expand the size of the circuit and district courts. Furthermore, Congress could accomplish this in a cost-effective manner by abolishing 158 of the most powerful administrative law judges and replacing them with Article III Administrative Law Judges; this would also help restore the separation of powers and rule of law to agency adjudications.”  

This by itself is not that radical of an idea.  Actually, a strong case can be made for expanding the number of lower federal courts.  For one, the number of lower courts has stayed the same for the past three decades even though the population of the United States has grown significantly.  Plus, unfortunately, the number of felony cases has risen as well.

However, the problem is his motivation for expansion, which is blatantly partisan.  “In doing so, Congress could achieve another important reform: undoing the judicial legacy of President Barack Obama.”

It’s not surprising that conservatives have different criteria for judges than President Obama, but for that to be the primary — if not only —motivation?  That’s a bit warped and shows just how political this has all become.

This reasoning — along with other public comments like this one by Leonard Leo, Executive Vice President of the Federalist Society: “We’re going to have to understand that judicial confirmations these days are more like political campaigns.  We’re going to have to be smart as a movement.” — give insight to these guys approach to total judicial domination. 

This cannot be stressed enough:  IT IS ABSOLUTELY CRITICAL THAT OUR JUDICIAL BRANCH NOT BECOME A POLITICAL PAWN.

We have to pay super close attention, regardless of who is in the White House.  Don’t think for a second that Republicans are the only ones who make judicial decisions based solely on partisan self-interest.  We must watch all of these people like hawks and hold every member of Congress accountable for every nomination vote they make.

Evidence:

1. Carrie Johnson and Renee Klahr.  “Trump Is Reshaping the Judiciary:  A Breakdown By Race, Gender And Qualification.”  NPR.  15 Nov 2018

2. Tessa Berenson.  “Inside Trump’s Plan to Dramatically Reshape U.S. Courts.”  Time.  8 Feb 2018

3. The Federalist No. 78. 28 May 1788

4. Steven G. Calabresi and Shams Hirji.  “Proposed Judgeship Bill.” Northwestern University Pritzker School of Law Public Law and Legal Theory Series, No. 17-24.  7 Nov 2017

5. Melissa Maleske.  “Trump Says Federalist Society Will Pick His Judges For Him.”  Lexus 360.  14 June 2016

6. David Montgomery.  “Conquerors of the Courts.”  Washington Post.  2 Jan 2019

7. Robert O'Harrow Jr. and Shawn Boburg.  “A Conservative Activist’s Behind-the-Scenes Campaign to Remake the Nation's Courts.”  21 May 2019