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Trump’s Judges Imperil Our Rights for Decades


In less than two years as president, Donald Trump has already put two radical right-wing justices on the Supreme Court, cementing a conservative majority on the Court for decades. He has also placed 29 right-wing judges on the federal circuit courts of appeals with more in the works by the end of the year. These judicial appointments threaten to endanger our rights for years to come.

We are painfully aware of how Trump and his GOP congressional leadership stole a Supreme Court appointment from Barack Obama and installed Neil Gorsuch, who has delivered conservative decisions as expected. And millions of us watched horrified as Brett Kavanaugh, Trump’s second Supreme Court pick, laid bare his right-wing bona fides as he lied under oath about a number of things and rallied conservatives in defense of rape culture.

Kavanaugh, who joined the high court on October 9, has not yet had the opportunity to rule on a case. But he showed his true colors during oral argument in Nielsen v. Preap, a case involving the right to a hearing for immigrants with criminal records before being imprisoned during the pendency of their deportation proceedings. Kavanaugh, who whined about being deprived of due process when he was accused of sexual assault, appears poised to vote with his fellow right-wing justices and deny immigrants who have already served their time any due process at all.

There is widespread focus on Trump’s two Supreme Court nominees. But there is less public awareness of how Trump has been systematically packing the federal circuit courts of appeals with conservative judges who are already slashing the rights of workers, immigrants, women, LGBTQ people, consumers, voters, the environment, people accused of crime and whistleblowers.

People for the American Way just released a report detailing the mean-spirited decisions that Gorsuch and Trump’s 29 circuit court judges have already handed down.

Gorsuch Casts Deciding Right-Wing Vote in More Than a Dozen Cases

Since joining the Court a year and a half ago, Gorsuch has not disappointed his conservative Federalist Society and Heritage Foundation backers, which put him on a list of acceptable right-wing judges from which Trump chooses his nominees. Gorsuch has cast the deciding vote in 14 cases that hurt workers, consumers, voters, immigrants and reproductive rights, and upheld abuses of government authority.

In Janus v. AFSCME, Gorsuch sided with the other four arch-conservative justices to overrule long-standing precedents that protected the right of public-sector employees to participate in effective collective bargaining.

Gorsuch wrote the decision for the conservative majority in Epic Systems Corp. v. Lewis, which held that employers can require employees to sign arbitration agreements, foreclosing their rights under the National Labor Relations Act to use class-action lawsuits.

Undermining more than 50 years of Supreme Court precedent, Gorsuch voted in Encino Motorcars v. Navarro that 100,000 service advisors employed by auto dealerships are not entitled to overtime pay under federal law.

In Husted v. A. Philip Randolph Institute, Gorsuch and the rest of the right-wing justices upheld Ohio’s voter purge system triggered by non-voting. As a result, more than 1 million voters were erased from the voting rolls.

The conservative majority, including Gorsuch, upheld Texas’s redistricting schemes, which a lower court had unanimously said were established with the intent to discriminate against people of color, inAbbott v. Perez. Gorsuch also joined Clarence Thomas’s concurrence where they suggested that Section 2 of the Voting Rights Act, which prohibits discriminatory voting practices, shouldn’t apply to redistricting decisions.

Gorsuch provided the deciding vote to uphold Trump’s infamous Muslim travel ban in Trump v. Hawaii.

In Jennings v. Rodriguez, Gorsuch and the other right-wing justices ruled that detained immigrants are not entitled to bond hearings under federal immigration law. As a result, thousands of people could be incarcerated for months or even years with no possibility of bail.

Gorsuch and his fellow conservatives held in Ohio v. American Express Co.that American Express’s policy that forbids merchants from encouraging customers to use credit cards with lower fees does not violate antitrust laws.

In California Public Employees’ Retirement System v. ANZ Securities, Inc., the right-wing majority imposed limits on the time investors have to join class-action lawsuits in securities cases.

The ultra-conservatives, including Gorsuch, struck down California’s law requiring disclosure of fraudulent “crisis pregnancy centers” in NIFLA v. Becerra.

Gorsuch and the rest of the right-wing gang denied several Arkansas prisoners a stay of execution by a method that is likely to cause excruciating pain in McGehee v. Hutchinson. Arkansas was rushing to execute eight people in 11 days to use up the painful drug before its expiration date.

In Murphy v. Smith, Gorsuch wrote the decision for the right-wing majority, which limited the damages prisoners could recover for severe abuse by prison officials.

Gorsuch also authored the majority opinion in Currier v. Virginia, which allows a state to prosecute a person for a crime even after the person was found not guilty, in a strained and alarming reinterpretation of the Double Jeopardy Clause.

And in Davila v. Davis, Gorsuch and the other conservatives denied a state prisoner the right to file a federal habeas corpus petition alleging that his lawyer was incompetent for failing to first raise the issue in state court.

Moreover, Gorsuch has written concurring and dissenting opinions arguing for even greater restrictions on people’s rights.

The Disturbing Decisions of Trump’s Federal Circuit Courts of Appeals Judges

Republicans have already confirmed 29 Trump circuit court of appeals judges and plan to confirm more by the end of the year. Judges who sit on the circuit courts have tremendous clout since most cases are resolved at that level, with fewer than 100 cases reviewed annually by the Supreme Court, according to the report from People for the American Way.

Trump’s circuit court appointees are displaying a disturbing record of regressive decisions that threaten the rights of all but the very powerful and uphold unlimited money in politics, as the report shows.

Seventh Circuit Judge Amy Coney Barrett voted to allow a corporation to racially segregate its workplace in one case, and in another, rejected the asylum claim of an immigrant who alleged he was tortured, without even considering the merits of the case.

Sixth Circuit Judge John Bush cast the deciding vote to prevent a case involving age discrimination from being heard by a jury.

Sixth Circuit Judge Amul Thapar voted to allow public officials to lead Christian-only prayers at public Board of Commissioners meetings.

Bush and Thapar also refused to permit brothers to present to a jury a claim that deliberate indifference by doctors contributed to their brother’s death in prison.

Eleventh Circuit Judges Kevin Newsom and Lisa Branch issued a ruling against LGBTQ equality in employment.

Newsom also cast the deciding vote to throw out a claim of unconstitutional and inhumane conditions of confinement, including being forced to walk barefoot on floors with urine, semen and vomit.

Fifth Circuit Judge Don Willett cast the deciding vote giving the president power to fire, for any reason at all, the head of the independent Federal Housing Finance Agency established by Congress. The result was based in part on a theory championed by then-circuit court Judge Kavanaugh, which was rejected by the majority of the D.C. Circuit. That reasoning could be used to give the president power over other independent agencies.

Fifth Circuit Judge James Ho cast the deciding vote to erect hurdles to the right to abortion and he strongly criticized Roe v. Wade in a separate concurrence.

Willett and Ho also voted to excuse the concealment of exculpatory evidence and reverse a damages verdict for an innocent man falsely imprisoned.

Sixth Circuit Judge John Nalbandian cast the deciding vote authorizing the immediate deportation of an immigrant with a “clean police record” who had been married to a US citizen for 10 years and had two US citizen children, without even waiting five days for a hearing.

Eighth Circuit Judge David Stras wrote the opinion and cast the deciding vote to rule that the circuit court did not have jurisdiction to review an administrative decision to refuse to process an asylum application. Another judge issued a strong dissent in the case, criticizing the majority for basing its decision “on a factual finding the agency never made.”

Fifth Circuit Judge Kyle Duncan cast the deciding vote to suspend an injunction and allow the unconstitutional jailing of poor people in Harris County, Texas, to continue.

Eleventh Circuit Judge Kevin Newsom filed a concurrence to reconsider the circuit’s precedent that a large cross maintained by the city on public property violated the First Amendment’s Establishment Clause, which prohibits the government from making any law “respecting an establishment of religion.”

Trump’s Circuit Court Judges Dissent in Order to Deny Civil Rights

Trump’s circuit court judges have also distinguished themselves by dissenting from decisions that upheld civil rights. For example:

Fifth Circuit Judge James Ho wrote a dissent taking an extreme position that would allow campaign contributions without limit.

Fifth Circuit Judges James Ho, Don Willett, Kyle Duncan and Kurt Engelhardt all voted in dissent to reconsider a decision upholding a federal gun control law.

Sixth Circuit Judge Amul Thapar’s dissent would allow corporations to pressure their employees to give up their rights to challenge sex discrimination under Title VII of the Civil Rights Act. Thapar also dissented in a case where he would have excused a lawyer who failed to advise a permanent resident about deportation consequences of a guilty plea.

Sixth Circuit Judge John Bush argued in dissent for ignoring the failure to warn a naturalized citizen of the consequences of a guilty plea.

Sixth Circuit Judge Joan Larsen dissented from a decision allowing a fired whistleblower to try her case to a jury.

Third Circuit Judge Stephanos Bibas joined a dissent from a ruling protecting transgender students against right-wing attacks.

What’s at Stake, What to Do

Progressives are working on developing strategies to circumvent the increasingly disastrous judges taking the federal bench. For example, environmental groups are coordinating with each other about whether to file cases in the Supreme Court. Many lawyers are filing cases in state rather than federal court, where their clients will get a fairer shot.

Meanwhile, the best strategy for limiting the number of right-wing judges with which Trump can pack the federal courts is to elect a Democratically controlled Senate in the midterm elections.

In order to confirm a Supreme Court justice or a federal circuit court of appeals judge, the Constitution requires that the Senate give its advice and consent. Because Republicans now control the Senate, Trump has been able to ram his judicial nominees through.

If Trump finishes his term, he could have additional Supreme Court appointments, and there is the frightening possibility that he might be elected to a second term. Justices Ruth Bader Ginsburg and Stephen Breyer are in their 80s. And Trump may have the opportunity to fill dozens of circuit court judgeships.

If Democrats were to secure a majority in the Senate, they could stop Trump’s systematic remaking of the federal judiciary. That’s what’s at stake in the midterm elections.

Copyright Truthout. Reprinted with permission.

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers and an advisory board member of Veterans for Peace. The editor and contributor to The United States and Torture: Legal, Moral, and Geopolitical Issues, Cohn testified before Congress about the Bush interrogation policy.

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