Updated: Jun 8, 2021
In 2015 Julien Xavier Neals was nominated by Obama to be U.S. District Judge for New Jersey and McConnell, a notorious racist, killed it for no other reason than Neals is Black. Yesterday 28 racist Republican senators, including Tim Scott (R-SC), filibustered Neals' nomination, this time by Biden. Today, once again 28 racist Republican senators tried-- and failed-- to use the Jim Crow filibuster to block another Biden US district court nominee, Regina Rodriguez of Colorado.
This morning, cloture won out and Neals was confirmed-- he is Biden's first confirmed judge-- 66-33. Biden and Schumer need to speed up the process; there are 71 more district court judges to be confirmed, as well as 9 appeals court vacancies.
Republicans voting for confirmation today included Richard Burr (NC), Shelley Moore Capito (WV), Bill Cassidy (LA), Susan Collins (ME), John Cornyn (TX), Kevin Cramer (ND), Joni Ernst (IA), Deb Fischer (NE), Lindsey Graham (SC), Chuck Grassley (R-IA), John Hoeven (ND), Cindy Hyde-Smith (MS), John Kennedy (LA), Lisa Murkowski (AK), Rob Portman (OH), Mitt Romney (UT), Mike Rounds (SD), Marco Rubio (FL), Thom Tillis (NC), Pat Toomey (PA), Roger Wicker (MS) and Todd Young (IN). So what happened to make Rand Paul and John Johnson, two notorious racists, vote no? Or does that answer the question?
Writing for Esquire today, Jackie Calmes reported on the conservative movement's long con to capture the courts, something, in 2016, they sacrificed the integrity and national viability of their party to achieve. It's an adaptation from Calmes book, Dissent: The Radicalization of the Republican Party and Its Capture of the Court.
Calmes began by reminding her readers that "Trump's 226 appointments to the trial, appellate, and Supreme courts will stand as one of his foremost legacies, and all but certainly his most enduring: some appointees, mostly young and with life tenure, will be on the bench late into the twenty-first century. Were Barrett to serve until her late eighties as Ginsburg did, she would be on the court until about 2060; Kavanaugh and Gorsuch could be there past 2050... He appointed fifty-four judges to the circuit courts-- which are the final word on the overwhelming share of appeals, since the high court accepts few-- just one less than Obama over eight years. When Trump left office, his picks comprised one-third of the Supreme Court, 30 percent of the thirteen circuit courts, and more than one-quarter of the judges at the nation’s ninety-four district courts. Like Trump’s administration and the Republican Party, his appointees are not a diverse group. Seventy-six percent are male (compared to 58 percent for Obama) and 84 percent white (64 percent for Obama). In McConnell’s Senate, confirming Trump judges took precedence over everything else. The right-wing RedState.com wrote-- approvingly, of course-- of 'the bloody-mindedness of Mitch McConnell and Chuck Grassley in ramming those nominees through the system.' Six months before the 2020 election, Grassley’s successor as Senate Judiciary Committee chairman, Lindsey Graham, urged federal judges in their sixties to retire so Republicans, rightly fearful of losing the Senate majority and the presidency, could fill the seats. McConnell, breaking yet another norm, had the Senate continue to confirm judges after Trump’s defeat, vowing he’d 'leave no vacancy behind.' Since 1897, the Senate had confirmed just one judicial nomination of those pending after the presidents who made them lost election. It confirmed fourteen of Trump’s. Even as Republicans complained that Democrats would pack the courts once Biden took office to offset Trump’s judges, they actually were continuing to do so."
More than any president before him, Trump picked young lawyers for the lifetime jobs. Many lacked the experience expected of federal judges. Democrat Dick Durbin of Illinois, who in 2021 became chairman of the Senate Judiciary Committee, told me that more than once he’d said to Trump officials at confirmation hearings, “So, let me get this straight: You couldn’t find one conservative Republican attorney in the state . . . who has had any courtroom experience or experience as a state judge?” More often than in past administrations, the American Bar Association rated some nominees “not qualified,” which didn’t deter Republicans from confirming them.
...All of Trump’s choices had one thing in common: serious conservative bona fides. As McConnell had half joked to the Federalist Society, ending the filibuster opened the door to 'crazy right-wingers' who never would have been confirmed in the past. Three times Trump nominated forty-year-old Matthew Kacsmaryk, who’d opposed legal protections for LGBTQ people and said they had mental disorders, before Republicans finally approved him for a Texas trial court in 2019. Confirmed to another Texas court that year was Michael J. Truncale, sixty-one, who’d called Obama an 'un-American imposter'; the only Republican to oppose him was Obama’s 2012 rival, Mitt Romney.
...Initially, Democrats’ elation at Biden’s victory was offset by dismay at their apparent failure to capture a Senate majority. Few expected Democrats could win both runoff elections in Georgia, which would give them control of a 50–50 Senate with Kamala Harris’s tiebreaker vote. If McConnell remained in charge, they knew, many Biden judicial nominees would hit a wall. As courts scholar Russell Wheeler at the Brookings Institution had written, “We are reaching the point that confirmations stop unless the same party controls the White House and Senate.” Yet the Democratic candidates in Georgia-- a Black man and a Jew-- amazingly did win their elections January 5, 2021.
Given Democrats’ precarious margins in the Senate and House, most liberal activists dropped their unrealistic demand that Congress expand the Supreme Court so Biden could add progressive justices. Even so, after years of Republicans thwarting Obama’s nominees and then railroading Trump’s, Democrats were primed to act more aggressively than in the past to shape the judiciary. The pressure to do so was bottom-up, from the party’s base, donors, and progressive groups. In a break from past elections, more Democratic voters than Republicans had said that an important factor in their choice for president was concern about Supreme Court appointments. That reflected in part a backlash to the Kavanaugh and Barrett confirmations. Emboldened progressives forced eighty-seven-year-old Feinstein, disdained as too conciliatory toward Republicans, to relinquish her role as party leader on the Senate Judiciary Committee. Durbin became chairman once Democrats took the majority.
Copying a page from Trump and the right, progressive groups were ready with lists of potential judges for Biden. One group was the American Constitution Society, the left’s weak imitation of the Federalist Society, now led by former senator Russ Feingold. Activists had canvassed lawyers, law professors, and local officials nationwide during the Trump years to vet prospects for judgeships should a Democrat become president. They emphasized diversity of race and gender, for a judiciary that “looks like America,” as Biden put it, but also professional and educational variety: fewer corporate lawyers and prosecutors, more public defenders, labor and legal-aid lawyers, and civil rights advocates. Fewer Ivy Leaguers, more state school alumni. As usual, Democrats didn’t focus on judicial philosophy and ideology like Republicans did, though certainly their criteria would yield generally progressive candidates. Activists also urged Senate Democrats to follow Republicans’ lead and end the blue slip tradition that gave opposition senators a veto over nominees from their states. Chris Kang, the former Obama adviser, said Senate Republicans mostly from southern states had blocked nearly twenty Obama nominees, all of them women or minorities, by withholding their blue slips.
No question, Democrats would be more partisan going forward. The question was whether they could beat Republicans at the game. Brian Fallon, the former Senate and Hillary Clinton adviser who was Kang’s cofounder of the liberal group Demand Justice, was skeptical even as he pressured Democratic leaders. “Mitch McConnell will obliterate norms without batting an eye,” he said. “Democrats constitutionally-- no pun intended-- don’t have that gene. They like the system to work. They like the government to function by norms.”
That certainly included Biden, long suspect on the left for his record as a moderate institutionalist on the Judiciary Committee, back to the Thomas hearings thirty years before. But the new president was receptive to the partisans’ push for a harder line, despite his promise to work with Republicans. He endorsed the call for diverse judicial candidates outside the corporate and prosecutorial mold. He promised a commission to examine potential changes to the judiciary, including term limits and additional judgeships. To expedite nominations, Biden agreed not to wait for ABA evaluations. “People are approaching this with a different sense of urgency,” said Paige Herwig, a White House counsel. “And they understand: They saw what the Trump administration did for four years.”
...It had been judicial appointments more than anything, even more than cutting taxes and regulations, that kept the Republican establishment in thrall to Trump. That was the Faustian bargain party leaders made for five years with the self-dealing charlatan who provoked an existential crisis for their party, and for democracy. Chief among them: McConnell, the man who denied Garland his rightful seat on the high court for Trump to fill with Gorsuch, rammed Kavanaugh through and then engineered Barrett's confirmation just days before elections that would end Trump's presidency and ultimately Senate Republicans' majority.
Reelected in 2020 to a seventh six-year term, at seventy-eight, McConnell will be around for his party’s next chapter. Republicans could well retake control of the Senate and House in 2022, given the close margins and the midterm jinx for the president’s party. Whether he's leader of a minority or majority, McConnell will do what he can to obstruct Biden’s agenda and especially his judicial nominees. But however the elections for Congress and the White House play out, McConnell can be satisfied that he, more than any single person, ensured that the Supreme Court will almost certainly remain in the conservatives’ corner well beyond his lifetime.
I just want to say something about the quote from Brian Fallon that Calmes used: "Mitch McConnell will obliterate norms without batting an eye. Democrats... don’t have that gene." Are you interested in Democrats who do have the gene? May I suggest Chris Larson (WI), Alan Grayson (FL), Erica Smith (NC), Colin Byrd (MD), Charles Booker (KY) and Lucas Kunce (MO)? They have a gene-- a gene that puts the well-being of people ahead of bullshit and racist Senate protocols. Please, please, consider contributing to their campaigns by clicking on the Blue America 2022 Senate thermometer above (it's a hot link). Otherwise, we will just be leaving it for Chuck Schumer to pick more Kyrsten Sinemas-- as well as more Cal Cunninghams, Amy McGraths, Sara Gideons, Jaime Harrisons, Barbara Bolliers and Theresa Greenfields.
Grayson noted this evening that "The GOP did, in fact, pack the judiciary with tools, fools and cruels. It’s actually a testament to the strength of the legal system that even a pack of screeching monkeys like that couldn’t buy into Trump’s psychotic post-election legal arguments."