Since Donald Trump has taken office, he and the GOP have confirmed judicial nominees at a record rate. To date, Trump has successfully nominated 93 federal judges—many of whom will go on to serve lifetime appointments. This past Wednesday, the Republican-led Senate took the most recent and alarming step in further pushing their judicial agenda by invoking the nuclear option for executive-branch nominees and district court judges.
In cutting the debate time for nominees from 30 hours to two, McConnell and Republicans are doing more than just bucking Senate norms—they are pursuing a radical takeover of the US court system, one which will have repercussions for decades to come.
The media, and subsequently the American public, have paid great attention to the most recent high profile judicial appointments. This of course includes—and in many ways, began—when Mitch McConnell employed what can only be categorized as blatant obstructionism in refusing to grant Judge Merrick Garland so much as a hearing. America again watched as McConnell capitalized on this political maneuver, opting to remove the filibuster and subsequent 60 vote threshold for Supreme Court nominees once Trump assumed office. The confirmation of both Justice Gorsuch and Justice Kavanaugh under a 50 vote threshold were not only high salience, but also highly controversial events.
However, Trump, McConnell and the GOP have received significantly less press coverage and national criticism as they continue to mold a conservative federal judiciary through any means necessary. Yet, in spite of minimal coverage, Americans of all political stripes should have grave concerns with this most recent action. This is both because of the erosion of senate norms and, perhaps more importantly, serious implications for American judicial jurisprudence for years to come.
In regard to norms, McConnell and the GOP have further eroded what was once unironically referred to as the world’s greatest deliberative body. In invoking the nuclear option, the Senate continues to shift toward a system of sheer majority rule, leaving little room for the minority party to challenge controversial appointments. Members of both parties ought to have serious reservations and objections to a system that, as Minority Leader Charles Schumer stated, may devolve into “a place where the brute power of the majority rules, with little or no regard to the concerns of the minority party, and where long standing rules have little or no meaning.”
Yet, the destruction of Senate norms may pale in comparison to the impact that McConnell and the GOP will have on American judicial jurisprudence for an entire lifetime. In pursuing their radical judicial agenda, Republicans have deliberately sought to appoint young, staunchly conservative judges. Senator Leahy (D-VT) described McConnell’s most recent nuclear maneuver as, “motivated by the far right’s desire to flood the federal judiciary with young, ideological nominees, many of whom… are simply unqualified to serve on our nation’s courts.” On top of being young and ultra-partisan, Trump’s appointees are also a far-cry from being representative of the nation’s population. According to USAToday, of the over 90 judges that Trump has successfully appointed, they are overwhelmingly white (92 percent) and male (76 percent). Members of both political parties ought to be concerned that our judicial system—already wrought with implicit bias and documented racial discrimination—will continue to look less and less like our diverse American population.
There is no need to mince words—the GOP is packing our courts while simultaneously squelching any realistic opportunity for legitimate minority opposition. The result is a federal judiciary that, for decades to come, will be filled with ultra right-wing, socially regressive partisans who fail to represent the American electorate.
In going nuclear, the GOP has highlighted yet again why it is imperative that Democrats win at the ballot box in 2020. However, as Mitch McConnell continues to flip the rules on their head and show no regard for historical norms, Democrats have an obligation to consider possible recourse.
Now, more than ever, it is imperative that members of the Democratic party engage in difficult conversations about increasing the size of our federal judiciary. Such an action ought not to be framed as a “court packing.” Rather, Democrats must explain that McConnell, Trump and the GOP have skewed our judiciary so drastically to the right that some form of “balancing” or “re-alignment” may be necessary.
A lifetime of American judicial jurisprudence is at stake.
Contact Eli Cousin at firstname.lastname@example.org.