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Richard A. Arenberg: Courts Get More Conservative, Less Diverse

President Donald Trump attacks what he calls the “witch hunt” by special counsel Robert Mueller virtually every day now.

Included in his Twitter outbursts are swipes at the Justice Department, the FBI, the intelligence community and, to a distressing extent, the mass media, suggesting these institutions of our democracy cannot be implicitly trusted.

Congress is doing little to restrain the president’s excesses. It is becoming increasing clear that eventually the federal courts may be called on to settle a constitutional crisis.

Now, more than ever, the credibility of those courts is crucial to preserving our democratic republic.

President Trump and the Republicans in the Senate are reshaping the federal judiciary at breakneck speed. The annual watch for the retirement of 81-year old Justice Anthony Kennedy, who is often the swing vote, is again occurring.

Judiciary Committee Chairman Chuck Grassley has made clear that Senate Republicans will put confirmation of a new justice on a fast track if Kennedy or any other justice retires. Grassley told conservative radio host Hugh Hewitt, “We’ve got to get this done before the election. ... So my message to any one of the nine Supreme Court justices: if you’re thinking about quitting this year, do it yesterday.”

But it’s the lower courts that have the greatest effect on the lives of Americans. There are currently 147 judicial vacancies. Already, 39 Trump-appointed judges are sitting on the courts. Of those, 21 are sitting on the powerful circuit courts, one level below the Supreme Court. Fourteen of the vacancies are in the circuit courts.

When the most recent circuit court judge was confirmed, Senate Majority Leader Mitch McConnell celebrated, declaring, “One-eighth ... of the circuit judges in America have been appointed by Donald Trump and confirmed by this Republican Senate. So we think we’re making dramatic progress.”

But Senator Grassley is demanding even greater haste. He told Hewitt, “I have pleaded with McConnell to work nights, to work Saturdays and weekends, and put the pressure on the Democrats. And we’ve got to have every Republican around and even cancel a recess so we can clear the calendar of these important nominees.”

Republicans have also curtailed the “blue slip” process, which gives home-state senators a voice in appointments made in their states.

The judicial branch is being ever-more openly politicized. During his 2016 campaign, President Trump made no secret of his litmus test: appointees must be pro-gun and anti-abortion. Most observers believe the Trump judges will move the courts to the right.

Recently, at a political rally in Michigan, Trump declared, “We are appointing judges ... like never before has anything happened like what we’re doing on great conservative Republican judges. We’re setting records, and by the time we’re finished, I think we will have the all-time record. You have no idea how important that is.”

Not only have the Trump choices been more ideologically conservative, but he has made a point of selecting younger nominees, some only in their 30s and 40s, for the lifetime appointments. The clear intention is to shape the courts for decades into the future. In fact, the median age is under 50.

McConnell has said that by appointing and confirming these young strict constructionists, “we’re making a generational change in our country that will be repeated over and over and over down through the years.”

The Trump judges are also notably less diverse than President Barack Obama’s selections were. Just five of Trump’s first 31 nominees to the Circuit Court are women (16 percent). Only three of the circuit court appointees are people of color (11 percent). Only 8 percent of Trump’s district court appointees are people of color.

By contrast, 43 percent of confirmed Obama nominees were women and 37 percent were people of color.

Under new, unfortunate precedents established under Democratic Senate control in 2013, ending debate on nominations can be done with only a simple majority vote, ruling out a filibuster, which requires 60 votes. The potential of a filibuster historically guided presidents toward selecting judges who could command some support in the minority. Now, the process is more blatantly political.

As the courts become increasingly rigidly partisan and less diverse, what will be left of their credibility in the event a constitutional crisis occurs?

Richard A. Arenberg, an occasional contributor, is a visiting professor of political science at Brown University. He worked for three Democratic U.S. senators, for a total of 34 years, and is co-author of “Defending the Filibuster: The Soul of the Senate.”

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