A disgraced Senate and president have no business confirming judges

With the sham trial of President Trump over, Senate Republicans are immediately pivoting to judicial nominations. This is no surprise. In fact, they are two sides of the same coin.

Because the Senate engaged in a cover-up rather than conduct a legitimate trial, the cloud hanging over Trump’s presidency not only remains, but has grown to cover both Trump and his enablers among the Senate majority. To prevent that cloud from extending to the judicial branch as well, all consideration of this president’s judicial nominees should cease.

The nature of Trump’s transgressions inevitably ties to judicial nominations. The House impeached him for abusing the powers of his office by soliciting a foreign government to interfere with the 2020 elections, and for obstructing Congress’s efforts to investigate the matter. This directly implicates two pillars of our liberty: fair elections and the separation of powers, both of which depend on properly functioning courts with unbiased judges.

Trump’s lawyer Alan Dershowitz made the president’s position clear: Nothing Trump does to stay in power can be impeachable because he believes his reelection is in the public interest. This view seeks to legitimize his effort to rig the 2020 elections. Moreover, it eliminates the most important constitutional protection against a dictatorial executive: impeachment and removal.

Republicans have now bought into this frightening and dangerous distortion of our Constitution. And now they are again turning their attention to the judges with lifetime tenure whom we count on to protect the right to vote, restrain a lawless president, and so much more. But Senate Republicans’ agenda is diametrically opposed to the goals of a properly functioning judicial system.

Indeed, the Senate trial shows how Republicans want our nation’s courts to work: do whatever it takes to get to the result that best serves the interests of Trump, Republicans, and their donors. We see this in the extreme records of the people Trump has been nominating for lifetime judgeships and their hostility to restraining the power of the president.

Brett Kavanaugh is an excellent example: He had disagreed with the Supreme Court’s watershed ruling that President Nixon had to hand over the Watergate tapes. He had written that the president has the constitutional authority to fire a special prosecutor without cause. On the D.C. Circuit, he had ruled that a president can simply choose not to enforce a law he disagrees with. That record made Kavanaugh the perfect Supreme Court nominee for an authoritarian like Donald Trump.

These are the same kinds of records the White House looks for in its lower-profile nominees for the circuit courts. Since the Supreme Court only takes a few dozen cases a year, the circuit courts are usually the last word in interpreting the law. So it is ominous but not surprising that President Trump has picked circuit court judges like Neomi Rao (D.C. Circuit) and Joan Larsen (Sixth Circuit) who share Kavanaugh’s belief in the “unitary executive theory,” which confers nearly unlimited presidential power. It’s no surprise that the Senate confirmed to the Eleventh Circuit last week Judge Andrew Brasher, who has fought tooth and nail against voting rights, one of the things authoritarians fear most.

And the potential consequences for our country are far-reaching. Trump and Senate Republicans are populating our federal courts with lifetime judges who believe that many reasonable restrictions on untrammeled corporate power are unconstitutional; that we have no constitutional right to abortion; that the Equal Protection Clause does not include LGBTQ+ people; that law enforcement officers are immune from accountability for unconstitutional abuses of power, including deadly force; that the government can endorse and even financially support religion; and more.

In fact, it’s already happening: Trump’s judges have argued in a dissent that Congress cannot subpoena his financial records. They have voted to let a Louisiana anti-abortion law go into effect, even though it is virtually identical to a Texas law recently struck down by the Supreme Court. And a Trump judge cast the deciding vote in the infamous December 2019 opinion striking down the ACA’s protections for people with preexisting conditions.

Our courts stand as a guardian of our rights and of our democracy. It is deeply disturbing that they are now entrusted to President Trump and a Republican majority in the Senate that thus far has been incapable of putting country over party. We must preserve vital public trust in our courts and rescue them from a future as a vestigial organ of the disgraced Trump administration. The Trump presidency and the GOP Senate majority must be shown the door in November.

Paul Gordon is Senior Legislative Counsel at People For the American Way.