Capture the Courts: The Trump-McConnell Judicial Takeover--TRANSCRIPT

Lee: Welcome back to May it Displease the Court

Mary: a podcast about how deeply and totally SCREWED UP the court system has always been

Lee: but especially under the Trump administration

Mary: I am Mary, your resident lawyer. I am recording from home due to Covid and I have children who you may hear in the background despite my best efforts to keep them quiet. I am here with Lee your guide to all things rhetorical and today we explore the GOP donors main goal for the Trump Administration, which is capturing the courts. Of course Trump isn’t acting alone, I mean let’s face it, he hasn’t been planning much if anything. The real brain child behind this takeover is Mitch McConnell, the Senate Majority Leader. He controls the Senate, deciding what bills get voted on, if any, when the Senate is in session. A bill must pass the Senate before it can become a law. McConnell refuses to allow votes on bills providing Covid relief packages, election security, voting rights. He has essentially shut down the Legislative Branch for anything except confirming Trump judges. They know they’re not going to finish in Trump’s first term. If he gets a second term, they WILL finish. 

Lee: Republican controlled courts have already decimated voting rights, failed to stop partisan gerrymandering, severely weakened unions, as well as siding with business every time. If they succeed in capturing the courts it will be the kiss of death for American democracy. It will be a complete donor big money takeover. Here’s how we know:

80, 5-4 decisions supreme court

WHITEHOUSE: that there have been 80 5-4 partisan decisions. They haven’t gotten a single lliberal member to go along with any of it. 

https://www.newsweek.com/myth-captured-courts-opinion-1512970

You don’t have to take our word for it. Here’s Trump himself at a June 2020 campaign rally in Tulsa:

https://www.youtube.com/watch?v=sMoMWEZYSoM

“And they want to appoint Supreme Court justices who will utterly obliterate the Constitution, and you now see how important the Supreme Court is. Think if we didn't have two justices that I think have been very, very good, but think how important it is. Think how important it is. We still, I guess, I don't know if it is an equal court.... It's like we are a minority court. The recent Supreme Court cases prove that if Joe Biden is elected he will stack the court with extremists, and the forgotten men and women together with everyone else. This, we will lose everything.”

“I've always heard how important judges are. Now we know how important they are. Over 300—around 300 by the end of the term. And when we have another four years, we will get a big percentage of the total number. November 3. Two great Supreme Court judges. We have two justices. Justice Gorsuch, Justice Kavanaugh. They are great. We have two. And we could get a few more.”

Mary: The Republicans, you’ve got to hand it to them, they can focus. Since they control the Legislative and Executive Branches they are determined to reshape the Judicial Branch by confirming partisan Judges to Federal Courts for lifetime appointments is really all that’s getting done.

McConnell calls confirming Judges “the most long lasting contribution we can make to the country”. 

As of July 10, 2020, according to Fox News, Trump has put 53 total judges on the circuit courts during his first term, 17 more judges than any other president in history except for Jimmy Carter, who appointed 54. In collaboration with McConnell, Trump has now filled every single circuit vacancy in the country. To paraphrase Mitch McConnell, no vacancy has been left behind. https://www.foxnews.com/politics/behind-the-scenes-of-how-trumps-supreme-court-list-is-made

At a Trump rally in KY McConnell thanked “Trump and the Republican Senate for 84 new Federal Judges already this Congress, keep sending them our way and we will keep confirming them and changing the court system forever.” 

Lee: How did Mitch do it? Well, after McConnell became the Senate Majority Leader in January 2015, he obstructed President Obama’s attempts to fill vacancies on the federal courts, leaving over 100 seats—including a stolen Supreme Court seat—for the next president to fill. 

• Once a Republican president took over, the Republican majority then upended Senate rules to confirm President Trump’s judicial nominees at a pace never before seen in the Senate. 
• On the whole, these nominees have been notable for their inexperience, youth, and demonstrated partisan extremism. 
• Typically, the role of the Senate is to provide meaningful advice and consent to the President’s judicial nominees after vetting them, McConnell’s GOP Senate has totally abdicated its oversight role. They are a confirmation conveyor belt getting as many installed as fast as possible, which is the clearest signal of just how central courts are to the Republican Party’s reactionary political agenda. https://www.democrats.senate.gov/dpcc/press-reports/dpcc-report-stabenow-schumer-whitehouse-unveil-report-detailing-gops-big-money-assault-on-the-constitution-our-independent-judiciary-and-the-rule-of-law. 

According to NPR EMBD podcast season 7 ep. 4, as of June 2019 (need to update numbers): 600+ District Ct Judges

By June 2020, Trump has an unsurpassed record of appointing 200 solid, conservative judges and he will continue to do so,” Tim Murtaugh, a spokesman for the Trump campaign, said in a statement. 

Confirming Federal Judges is McConnell’s top priority. In 2.5 yrs more than 20% of circuit ct judges are Trump appointee. McConnell has changed the rules for how these vacancies are filled. Blue slips used to allow a home state senator to decide who gets confirmed to their state are gone for some nominees. ABA ratings, which were a stamp of approval stating whether a person was qualified to be a Judge or not, don’t matter much anymore. Trump has nominated 6 people deemed unqualified who have been confirmed. McConnell changed the Senate rules which called for 30 hours of debate per nominee down to 2 hours. He justifies this by saying “there used to be more bipartisan agreement, now the Democrats are using the 30 hours to slow down the process”. 

Getting rid of old judges to get in young unqualified judges

Running out of court vacancies, McConnell is making direct overtures to sitting judges, pressuring them to retire to make room for Trump’s younger, more extreme replacements 

MARY: McConnell Trump appointees are young, 30’s and 40’s, ensuring they will be in place for decades. BY THAT AGE YOU CAN’T HAVE DONE MUCH--YOU CAN’T REALLY HAVE PROVEN YOUR VALUE AS A JUDGE. If you get on the bench quickly then you haven’t practiced much. You haven’t handled cases. You get out of law school and you can research but you need to spend a career getting expertise. I’m not even sure I have expertise and I’ve been doing it 20 years. Nominated for trial positions that have never done trials. You’re supposed to be ruling on evidence and procedure and you don’t know anything about those things. You can’t possibly know.

Lee: They're not only young. They’re also pro-corporate According to an analysis by ProPublica and Columbia Journalism Investigations, the Trump administration has brought into official positions at least 281 former corporate lobbyists, just through October 2019.

Let’s look at some of the judges Trump has appointed outside the Supreme Court.

Lee: Brandon Bolling

-Islam was incompatible with the First Amendment and homosexuality was not innate

-a right-wing Christian group that declares itself “battle ready to defend America” 

-hired as assistant chief immigration judge in Texas, even though he has no discernible immigration experience.

-Now Bolling will help oversee the immigration cases of people detained in El Paso, and could be responsible for deciding whether victims of persecution based on their religions and sexual orientations receive protection under US asylum laws. 

-Bolling is one of 46 new immigration judges recently hired by the Trump administration. 

Lee: Matt O’Brien

-research director for the Federation for American Immigration Reform, one of the country’s leading anti-immigrant groups. 

Even when immigrants appeal their decisions, they generally stick, since the Trump administration has made a point of filling the Board of Immigration Appeals with judges known for denying nearly all asylum claims. 

https://www.motherjones.com/politics/2020/07/he-defended-anti-gay-and-anti-muslim-causes-now-hes-an-immigration-judge/ 

Neomi Rao

-D.C. Circuit Judge and former George Mason University law professor 

-The Dean of GMU’s law school wrote to a Federalist Society-affiliated funder that his $1.5 million donation would be needed to entice Rao back to GMU after she “dismantles the administrative state while serving at OIRA” (Office of Information and Regulatory Affairs).

-Koch funded law department

-During her confirmation hearing before the Senate Judiciary Committee, Rao went to great lengths to avoid testifying about who funded the Center’s programs, giving affirmatively misleading answers—falsely testifying, for example, that her Center “did not receive money from an anonymous donor.” 

 - Judge Neomi Rao, are plucked directly from Leonard Leo’s network, sent to the bench on a mission to protect President Trump and “dismantle the administrative state.” 

-In Rao’s short time on the powerful D.C. Circuit, observers of her extreme jurisprudence have observed that her opinions “read like she’s acting as Trump’s personal protector.

-Michael Flynn decision--Barr says I know he pled guilty but we don’t have enough to prosecute--judge who took guilty plea did a hearing; can’t collude with the defense when this guy pled guilty. Case went before the DC Circuit, three judge panel, including Rao and another Trump judge. 2:1 said you don’t have to do a hearing. District Court Judge said there should be a hearing. 8:2 The whole DC circuit listens and everyone votes against Rao and other Trump judges to say no, sorry.

Justin Walker

• -37 years old
• -rated unqualified
•  catapulted to the DC circuit ct of appeals, a stepping stone to the Sup Ct. oh and he is in deep with McConnell and Kavanaugh of course
• Appointed him to seat that isn’t even vacant yet

Lee - What’s scary about Trump’s new list of judges will also include judges he has already promoted Trump is just going to fast track there people, like this 37 year old who is now on a fast track to the Supreme Court

How are they getting these judges? Federalist society and dark money donors.

The Federalist Society would have you believe that they are just  a group that sponsors “fair, serious, and open debate about the need to enhance individual freedom and the role of the courts in saying what the law is rather than what they wish it to be.”

https://fedsoc.org/frequently-asked-questions

When really there are three incarnations of the Federalist Society. 

• The first is perfectly appropriate: a debating society for conservatives at law schools and in legal communities across the country to discuss traditionally conservative judicial values, like originalism and the merits of limited government. 
• The second is familiar in Washington, D.C.: a think tank that attracts big-name conservative lawyers, scholars, politicians, and even Supreme Court Justices to events; that publishes and podcasts; and that holds galas.
• The third role is the dangerous one: it is the vehicle for powerful interests seeking to reorder the judiciary by grooming, vetting and selecting amenable judges.

Trump has ceded all choice of who he nominates to the Federalist Society, which is led by Leonard Leo. Leo chooses the judicial nominees, which are younger, less experienced, and more ideologically extreme than any president’s in history, and less diverse than any president’s in decades.  McConnell ensures that the Senate plows through the nomination and confirmation process without meaningful review. Confirmation has become virtually automatic with the goal of granting big Republican donors and insurance policy that will long outlast this President and Congress. The donors will be able to achieve political and policy results through the judiciary. 

In describing the Trump Administration’s efforts to nominate ideologically vetted Federalist Society members to the bench, former White House Counsel (and Federalist Society member) Donald McGahn put it plainly: “There is a coherent plan here where the judicial selection” functions as three legs of a stool: deregulation and judicial selection are the first two legs, and donor interests are the third. All three work together to undermine our democratic government. https://www.nytimes.com/2018/03/26/us/politics/trump-judges-courts-administrative-state.html

Lee: The Senate Democrats put out a report in May of 2020 and it lays out what their investigation has found: https://www.democrats.senate.gov/dpcc/press-reports/dpcc-report-stabenow-schumer-whitehouse-unveil-report-detailing-gops-big-money-assault-on-the-constitution-our-independent-judiciary-and-the-rule-of-law. 

Follow the Money 

• Republicans and their corporate and billionaire backers have used an outside-inside strategy to capture our courts: ultra-wealthy funders on the outside fund the operation, and politicians on the inside implement it. 
• The Right’s court-capture machinery is fueled by hundreds of millions in special-interest dollars, the sources of which are never fully disclosed to the public. At the heart of this network is Leonard Leo.  Mr. Leo, who co-chairs the Federalist Society and he makes judicial appointments that shape our country. 
• At the same time, Leo manages and coordinates a secretive network of more than two dozen right-wing nonprofits that raised over $250 million between 2014 and 2017 alone—money targeted at efforts to support “conservative” policies and judges.
• The true sources of that money—and the true interests of the anonymous donors—remain unknown to the public. 
• What is all this money used for? It funds a complex network of think tanks, law school centers, policy front groups, political campaign arms, and public relations shops, all focused on shaping the composition of the courts and the rulings they make. Deploying hundreds of millions of dollars from big-money donors like the Koch brothers and U.S. Chamber of Commerce, this network picks judicial nominees, wages media campaigns for their confirmation, props up the politicians that vote for them (while attacking those that don’t), develops legal doctrines for them to adopt, then tees up cases for them to rule on—delivering big returns for the donors. https://www.democrats.senate.gov/dpcc/press-reports/dpcc-report-stabenow-schumer-whitehouse-unveil-report-detailing-gops-big-money-assault-on-the-constitution-our-independent-judiciary-and-the-rule-of-law. 

Mary: Other bipartisan bills not being accomplished

For McConnell and the Senate Republicans, the purpose of the Senate and the Legislative Branch is to confirm Trump judges. The House Democrats have passed over 350 bills, 90% of which have bi-partisan support, that have yet to even be considered by the Senate. The House, which is voted into office every 2 years, is more responsive to the voting public. The bills McConnell refuses to allow the Senate to consider are the ones that would overwhelmingly want lower health care costs, to address the climate crisis, enact common sense gun laws, and to reduce corruption in politics. 

But voter doesn’t mean much to McConnell. He isn’t trying to serve their interests and their plight rarely if ever causes him to behave differently.

Empirically, one study found: [T]he views of constituents in the upper third of the income distribution received about 50% more weight than those in the middle third, with even larger disparities on specific salient roll call votes. Meanwhile, the views of constituents in the bottom third of the income distribution received no weight at all in the voting decisions of their senators. https://www.russellsage.org/sites/all/files/u4/Bartels%20EIPR.pdf

Mary: Just to sum up, here is senator sheldon whitehouse, writing in harvard law review, about the “battle plan.” Senator Whitehouse is the real deal.  A former Federal prosecutor. And he is doing his level best  to sound the alarm and get his fellow Legislators and the public to care about the  Judicial coup happening  right now. 

• Select carefully vetted judges who embrace the desired pro-corporate world view. This is done by giving a controlling role in judicial selection to an organization to which the interests give millions of dollars (the Federalist Society); 
• Unleash millions in dark money supporting the nominee (or opposing him in Judge Merrick Garland’s case). This is done through an organization (the Judicial Crisis Network (“JCN”)) that uses anonymous donations to fund political advertising campaigns for (or against) nominees; 
• With their judges in place, tee up strategic cases and inundate courts with amicus briefs—best understood as lobbying documents. This is done through a flotilla of closely related front groups. These front groups sometimes appear as the litigant, behind a plaintiff of convenience; and sometimes among  a bevy of  amicus  briefs signaling just how the Republican donors  expect their Judges to decide  the cases before them.  

Mary

In October 2006, Leo presented to students at the University of Virginia (“UVA”) School of Law an overview of the measures used to help confirm George W. Bush nominees John Roberts and Samuel Alito. According to an article about the UVA event, Leo’s strategies included the following: 

• “Aggressive fundraising to hire a top media firm. About $15 million was spent for both confirmations on earned and paid media, telemarketing, and other grassroots mobilization 
• “Advance work recruiting more than 60 organizations to support the nomination and confirmation of a person committed to conservative priorities 
• “Polling to figure out what the American people thought the role of the court should be so that the message could be framed in a way that resonated with the public • 

“Publishing white papers to paint the ground favorably when it comes to the questions that are appropriate for a nominee to answer 

Lee: That is the plan to capture the courts and completely break the federal court system so that it is irreparable for many many decades. If you aren’t a huge corporate donor with buckets of money, you aren’t going to win your lawsuit. 

Mary There goes your peaceful conflict resolution

Vote Biden.

Listen to the podcast episode:

https://displeasethecourt.podbean.com/e/capture-the-courts-the-trump-mcconnell-judicial-takeover-season-01-ep-04/