Trump’s Court Takeover Includes McConnell Opening Up Congress to ‘Sardine Can’ Judges Onto Bench

Coronavirus cases are still rising in the District of Columbia, where more than 200 people have died of the disease. The House decided it was too dangerous to return to the Capitol.

But Mitch McConnell’s Senate is coming back anyway.

The Senate majority leader is gambling that 100 senators can safely meet on the Senate floor and throughout the Capitol complex. Many of them will travel across the country for the Senate’s reopening, risking exposure on airplanes and in airports.

And 49 senators are aged 65 or older and at greater risk of the deadly disease, according to the Centers for Disease Control and Prevention. Plus, the senators’ return will bring back hundreds of staffers and Capitol employees.

McConnell is signaling he will keep advancing judicial and executive branch nominations next week while he assesses future coronavirus legislation with Speaker Nancy Pelosi (D-Calif.). Senate Democrats say it isn’t worth coming back for that.

“What a dangerous and ill-conceived idea,” said Sen. Chris Coons (D-Del.), who is discussing with his wife and staff whether to return next week. “I have some colleagues that are seriously considering not returning because there’s nothing on the agenda yet that requires us to be there.”

“If we’re doing oversight work or we’re passing a relief bill, then you can credibly make the case we are essential employees,” said Sen. Chris Murphy (D-Conn.). “But there’s no reason to bring the Senate back to make conservative radio hosts happy. That’s a dereliction of duty.”

Republicans counter that the Senate needs to be in session and policy priorities can’t wait.

“Our job is to get nominations across the finish line, and I’ve put so much time and effort into health care reform and climate,” said Sen. Mike Braun (R-Ind.). “I almost feel like that wanes every day you’re not there.”

The schism reflects the culture war playing out across the country as protesters press governors in a series of states to lift restrictions intended to slow the outbreak. The GOP-controlled Senate also wants to show that it’s on the job while the Democratic House stays away.

Despite the anxiety, McConnell maintains that the Senate can still function safely.

“We can man the Senate in a way that’s consistent with good practices, proper spacing, masks where appropriate,” he said Wednesday on Fox News. “We believe we can conduct the people’s business, and we intend to.”

Republicans are planning to still have in-person party lunches next week. Democrats will do all of their caucus business by conference call for now, senators said, another sharp break between the two parties’ approach to the disease.

McConnell has repeatedly vowed the pandemic will not deter him from confirming more judges. The Senate Judiciary Committee is planning a confirmation hearing next week for Justin Walker, one of his protégés, to serve on the U.S. Court of Appeals for the D.C. Circuit.

The Senate Intelligence Committee is also preparing a hearing on the nomination of Rep. John Ratcliffe (R-Texas) to be director of national intelligence, and several other committees are considering hearings. Senate Health, Education, Labor and Pensions Committee Chairman Lamar Alexander (R-Tenn.) is planning to limit hearing attendance to senators, witnesses and a small group of staffers.

Unlike the House, the Senate must consider nominations that take up valuable floor time. The GOP also risks losing control of the chamber this year, and with it the ability to confirm conservative judges.

Still, Republicans say there will be continuing discussions about the coronavirus response when back in D.C.

Some GOP senators have raised questions about returning to Washington, but more quietly than Democrats. Sen. Lisa Murkowski (R-Alaska) pressed McConnell for guidance in a GOP conference call on Tuesday.

Braun said he had hoped to implement remote voting temporarily and acknowledged “there’s a risk” in coming back. But he hopes everyone learned their lesson after Sen. Rand Paul’s (R-Ky.) coronavirus diagnosis in March.

“We were in peril the way we were,” Braun said. “Now more than ever, we’re all aware of what could happen if you get a little bit careless.”

The absence of a coronavirus-specific agenda coupled with the considerable health risks dominated a Democratic Caucus call on Tuesday. Democratic Sens. Elizabeth Warren of Massachusetts, Kyrsten Sinema of Arizona and Bob Casey of Pennsylvania have also privately expressed concerns about the matter, according to multiple sources.

The only floor vote scheduled is on Monday to confirm the inspector general for the Nuclear Regulatory Commission.

How Trump has tipped the scales in America’s most powerful courts:  A look Inside three circuits that Donald Trump has remade.

Tom McCarthy examines how three appeals courts are becoming more conservative with the arrival of judges picked by Trump – and what that means for cases on issues like voting rights

Originally Published; May 1, 2020

The US supreme court may be the highest in the land, but because of the small number of cases it hears each year, justice usually does not get that far. Final rulings in the vast majority of federal lawsuits are issued one tier lower, in the 13 appeals courts spread across the country.

And this is now where key policy questions increasingly land, because partisanship has slowed legislative dealmaking in the United States in recent years.

It is in these appeals courts where judges serving lifetime appointments have extraordinary power over issues as public as the climate crisis and as private as the right to choose.

That longer-term trend has converged with a much more recent development: Donald Trump’s appointment of a record number of appeals court judges installed with unprecedented speed, as part of a grand project coordinated with conservative legal activists to remake the federal bench for generations to come. Nearly 30% of the 179 active circuit court judges are now Trump appointees.

Owing to this extraordinary push, the ideological makeup of the courts has slowly tipped in a conservative direction. Since 2017, three of the courts have “flipped” from a majority of judges appointed by a Democratic president to a Republican-appointment majority.

The US court of appeals for the eleventh circuit, which oversees cases in Florida, Alabama and Georgia, has gone from an 8-3 majority of judges appointed by Democrats, with one vacancy, to a 7-5 majority of judges appointed by Republicans.

Elsewhere, Trump has “flipped” the second and third Circuits, and he has effectively flipped a fourth court, the ninth circuit, some analysts think.

“I still like to think there’s a bottom line for even conservative Trump appointees on the court of appeals, that there’s a line there that they won’t cross over, that we’ll remain a country of laws and not men,” said Sheldon Goldman, a professor of political science at the University of Massachusetts at Amherst who focuses on the federal bench. “But who knows?”

Together the ninth, eleventh and fifth circuit courts decide thousands of cases a year with broad repercussions for daily life in America. Here’s a look at how the three courts are changing under Trump.

Pres. Trump threatens to adjourn both chambers of Congress so he can make appointments to fill vacant positions and judicial slots.

“If they don’t act on getting these people approved,” Trump says, he will have to do something “that I prefer not doing.” https://t.co/KXv4M8zNFm pic.twitter.com/M9IJLoCzI9

— ABC News (@ABC) April 15, 2020

Fifth circuit
Texas, Louisiana, Mississippi

Key issue: healthcare

Since Trump became president, the US court of appeals for the fifth circuit has gone from a 9-5 majority of active judges appointed by Republicans, with three vacancies, to an 11-5 majority of judges appointed by Republicans, with one vacancy.

Trump judges on the circuit have boosted key administration projects, especially on immigration, greenlighting $3.6bn in spending on the border wall and taking a chilly view of asylum claims. They have issued rulings inimical to employment equality and fair housing claims, and protected law enforcement from liability for excessive use of force. In a case with ominous resonance under the coronavirus pandemic, the court has defended objections on religious grounds to immunizations.

“It’s worth pointing out that four of the courts, the fifth, sixth, seventh and eighth, had Republican-appointed majorities when Trump took office,” said Wheeler. “So he has perhaps strengthened the Republican-appointee majority on those courts by putting younger and perhaps ideologically more committed judges in the place of older Republicans.”

As we agree that the false statements “had the capacity to influence a savings and loan institution’s decision to make a loan”..we conclude that the false statements were material.”@nyulaw @VolokhC @JoshMBlackman @chkbal @scotxblog @SCOTUSblog @nytimes https://t.co/EIAgCnCepY pic.twitter.com/yzSie3dzjP

— LawsInTexas (@lawsintexasusa) May 1, 2020

Eleventh circuit
Florida, Georgia, Alabama

Key issue: Who gets to vote

Floridians struck a historic blow in favor of universal suffrage in the 2018 midterm elections, passing a constitutional amendment that restored the right to vote to felons who had completed their sentences. With a 30-point margin of victory, the will of the voters was unambiguous.

But the reality of voting in Florida, a key presidential swing state, has been slow to change. Last May, the Republican-controlled legislature passed a law curtailing the right of felons to vote who owe money from legal penalties, significantly rolling back the 2018 referendum result.

In reply, would-be voters sued the Republican governor, and now voting rights in Florida are in a very different place from where they seemed to be in November 2018. Instead of being before the electorate, the issue is before the federal courts, which means it is in the hands of judges appointed by Trump.

In a ruling expected in the coming months, Trump’s judges could strip the right to vote from the 1.5 million people who had it restored in the 2018 referendum, in defiance of the popular will, potentially swaying the results of the November 2020 election, in a swing state that Trump needs to hold in order to return to the White House.

“We had fears about what these jurists would do when they got on the bench, just from their records,” said Marge Baker, executive vice-president of People for the American Way (PFAW), which maintains a tracking tool of Trump’s judges called Confirmed Judges, Confirmed Fears. “This administration more than any has really been putting movement ideologues on the bench who have an agenda. And once we got far enough into the administration, we realized that the judges about whom we had fears were issuing decisions that were highly problematic.”

Rulings by circuit courts, which average about 13 active judges each, are typically issued by randomly selected three-judge panels, meaning that the overall makeup of the court does not directly come into play in every ruling.

Over time, however, the composite ideological orientation of a court comes through. And Trump’s judges on the eleventh circuit have shown what critics see as a hostility to a central issue for the state of Florida and the country: voting rights.

The legal team representing voters in the Florida felony disenfranchisement case claims in part that the state law was passed with racial and discriminatory intent in violation of the constitution.

“This issue of felony disenfranchisement is a really important issue in the United States,” said Sean Morales-Doyle, a Brennan Center lawyer who is litigating the case.

“Florida’s voters came forward and really made clear that they rejected this, that this wasn’t a policy that voters on any part of the political spectrum believe in. And then we promptly saw the Florida legislature attempt to undo that.”

If Trump is talking about recess appointments for judges, then we know who he’s talking about. His two new circuit court nominees are conservative extremists with anti-health care records. And now we know he’s willing to do anything to get them installed. https://t.co/6kImOY29dT

— Vanita Gupta (@vanitaguptaCR) April 15, 2020

Ninth circuit
California, Oregon, Washington, Alaska, Hawaii, Montana, Idaho, Nevada, Arizona

Key issue: Immigration

Since Trump became president, the US court of appeals for the ninth circuit has gone from an 18-7 majority of active judges appointed by Democrats, with four vacancies, to a much narrower 16-13 majority of judges appointed by Democrats. But the court’s senior judges, who carry about half the caseload of active judges, also issue rulings – and at the senior level, Republican appointees now outnumber Democratic appointees 10-3.

“Maybe it’s already flipped in some ways,” said Carl Tobias, a professor at Richmond School of Law specializing in federal judicial selection, of the ninth circuit.

Whatever the balance on the bench, activists express concern about decisions coming down from the court, historically one of the most progressive in the country.

Trump judges on the ninth circuit have been especially abrasive in immigration cases, denying spousal visas in violation of long precedent and dismissing asylum claims, including in a case where the plaintiff had evidence of murders of multiple family members in his home country.

In one dissent, a Trump-appointed judge supported a Trump proclamation banning entry to any would-be immigrant who could not prove either possession of health insurance or an ability to pay for healthcare.

The judge ruled that the government would “suffer immediate, irreparable harm” unless the health insurance screen was allowed to stand, quoting Trump on the “financial and public health burdens that the uninsured can impose”.

Russell Wheeler, a visiting fellow at the Brookings Institution who analyzes the shifting makeup of federal courts under Trump, said the ninth circuit had undergone “a big change” and noted that the outsized caseload of the circuit, the biggest in the country covering 60 million people, often required visiting judges to fill in.

“Donald Trump thinks he’s above the law. Time and again, the Republican justices on the Supreme Court have told him he’s right—enabling his worst impulses.” —Demand Justice