America can’t afford a right-wing takeover of our appeals courts

Although President Trump’s nomination of Neil Gorsuch to the Supreme Court dominated headlines early in his presidency, much less attention has been paid to Trump’s nominees to the federal courts of appeals, which fall right below the Supreme Court in power and authority.

Consider this: while the Supreme Court decides less than 80 cases per year, the courts of appeal resolve more than 50,000. In other words, the federal appellate courts are the last word for most Americans on crucial legal issues.

{mosads}Trump is already ahead of the pace of both Presidents Obama and Bush in filling these positions, having gotten the Senate to confirm three judges on the courts of appeals already (in addition to Gorsuch), with nominations for eight more pending and additional vacancies still to try and fill. Before the last election, the majority of judges on most federal courts of appeals were moderates. But far-right advocates are determined to reverse that as soon as possible, a shift that would have disastrous consequences for all of our rights.

Indeed, spurred by the Federalist Society and other right-wing groups, Trump has “vowed to choose ideologues in the mold of the late Supreme Court Justice Antonin Scalia” to fill appellate court and other vacancies, a promise that has delighted far-right activists.  And there is strong evidence that this description applies to several of the Trump appellate court nominees the Senate has already confirmed.  

We cannot afford a right-wing takeover of our appellate courts.

In recent months, we have already seen examples of what conscientious lower courts not composed of ideologues can do to rein in Trump’s extreme agenda. The full courts of appeals in the Fourth and Ninth Circuits, the majority of which are moderate appointees, issued powerful opinions rebuking and blocking parts of Trump’s dangerous immigration and refugee orders.

The Supreme Court will consider the issue this fall, but the decisions by the courts of appeal have already had enormous impact on many immigrants and refugees and have set the tone for the nation’s consideration of these issues. Preventing Trump’s judges from taking over these lower courts is essential for safeguarding Americans’ rights and liberties.

In fact, there are a number of examples where the presence of moderate judges on the federal courts of appeals has made the difference between protecting and undermining Americans’ rights. In these cases, as with so many others, the courts of appeals had the final word and the Supreme Court never wrote an opinion.

For example:

Voting rights: A divided panel of the Fourth Circuit Court of Appeals struck down a harmful North Carolina voter ID law in 2016.

Environmental protection: 2-1 decisions in the D.C. Circuit Court of Appeals in the last several years upheld two important EPA decisions. One rejected an industry challenge to a rule limiting hazardous air pollution caused by PVC production and another revoked a mining permit because of harmful pollution in violation of the Clean Water Act.

LGBTQ rights: The Ninth Circuit Court of Appeals ruled in 2014 that it was improper to discriminate against LGBTQ people in selecting juries and to exclude a gay man from a jury considering a case about the pricing of HIV medications.

Job discrimination: The full Fourth Circuit Court of Appeals overruled a prior case and ruled that a black employee should be able to present to a jury claims of racial harassment, hostile work environment, and retaliation.

Labor unions: A divided D.C. Circuit panel rejected a corporation’s claim that it could refuse to bargain with a union because many of its members were undocumented.

Reproductive rights: The full Tenth Circuit Court of Appeals let stand an important panel ruling that issued a preliminary injunction against the Utah governor, who had cut off funding for Planned Parenthood in retaliation for promoting access to abortion. The dissenting judges, led by now-Supreme Court Justice Neil Gorsuch, wanted to reconsider and reverse the ruling.

These are only a few examples of the crucial importance of stopping right-wing efforts to make Trump nominees the majority of judges on our nation’s federal courts of appeals. With appellate courts serving as the final word on legal questions that shape the lives of people across the country, this is not an issue we can afford to ignore.

Elliot Mincberg is a senior fellow at People For the American Way, a progressive advocacy organization founded to fight right-wing extremism and defend constitutional values. Previously, he served as chief counsel for Oversight and Investigations of the House Judiciary Committee.

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