By: Larry J. Schweiger
Pittsburgh Current Columnist
Since taking office, Trump has appointed two Supreme Court justices – Neil Gorsuch and Brett Kavanaugh – as well as nearly 200 other judges with lifetime appointments to lower federal courts. According to the Pew Research Center, 24% of the Federal Judicial positions are now filled with Trump appointees. Trump is now seeking to replace Supreme Court Justice Ruth Bader Ginsburg, the most influential justice in our lifetime whose last wish expressed to her granddaughter, “My most fervent wish is that I will not be replaced until a new president is installed.”
Have you no decency? It is disgusting and tawdry that within 24 hours of Ginsburg’s death, Trump announced he would appoint a woman and urged Republicans to fill the vacancy. Chants of “Fill that seat! Fill that seat!” broke out during Trump’s campaign rally in Fayetteville on Saturday. Just minutes after Ginsburg’s death, Majority Leader Mitch McConnell pledged a floor vote on an appointment.
McConnell is a hypocrite. He refused to even consider highly qualified moderate Merrick Garland, nominated by Barrack Obama eleven months before the 2016 election saying the voters should decide in November. Now that the table has turned, he has flipped and is committing to a hasty confirmation vote in the face of a Presidential election for a lifetime appointment to the highest court in the land.
Within moments of Justice Ginsburg’s death, embattled Senator Joni Ernst (R-IA) launched a fundraising effort off the vacancy. Other Republican senators led by Lindsey Graham are flipflopping on their 2016 pledge not to vote for a Supreme Court Justice in an election year.
Barack Obama, responding to Trump’s decision to nominate Ginsburg’s replacement, issued a statement: “Four and a half years ago, when Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in. A basic principle of the law––and of everyday fairness––is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment. The rule of law, the legitimacy of our courts, the fundamental workings of our democracy all depend on that basic principle. As votes are already being cast in this election, Republican Senators are now called to apply that standard. The questions before the Court now and in the coming years––with decisions that will determine whether or not our economy is fair, our society is just, women are treated equally, our planet survives, and our democracy endures––are too consequential to future generations for courts to be filled through anything less than an unimpeachable process.”
Drawing from the Federal Judicial Center data, as of July 7, there were 792 active judges serving across the three main tiers of the federal court system: the Supreme Court, 13 regional appeals courts, and 91 district courts governed by Article III of the U.S. Constitution. In a single term, Trump, an unindicted co-conspirator and unquestionably the most lawless president in American history, has appointed 194 judges, or 24% of the total.
Mitch McConnell, freed from the filibuster rules, has been jamming as many appointments as possible. Trump and McConnell moved at an unprecedented pace in appointing and confirming federal judges, especially powerful federal appellate judges. Sheldon Whitehouse, U.S. Senator from Rhode Island, observed, “They seem to have no higher priority.”
While ignoring the American Bar Association’s ratings and recommendations, which have been the bipartisan gold standard for many decades, Trump picks judicial candidates screened by the Federalist Society to favor corporate interests. So much for equal justice under the law. Behind the curtain, the Federalist Society has been identifying candidates with strong corporate leanings, and they coach nominees on what to say, what not to say and how to say it.
Whitehouse has been tracking the Federalist Society’s influence in judicial appointments and warns, “nearly 90% of Trump’s appellate judges, and both his Supreme Court justices, are members of the so-called Federalist Society.” Of the eight current members of the Supreme Court, five including Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, John Roberts, and Samuel Alito, are current or former members of the organization. Whitehouse adds: “What’s really weird is that through this Federalist Society vehicle, big special interests are picking federal judges.”
Senator Whitehouse warns: “Within the Federalist Society, is an operation funded by dark money and designed to remake our judiciary on behalf of a distinct group of very wealthy anonymous funders. In 2017, the Federalist Society took $5.5 million via an entity called DonorsTrust.” DonorsTrust has as its sole purpose to launder mega-rich donors and fossil fuel corporations’ identities so that voters don’t know who the real backers of the Federalist Society and other right-wing groups are. Whitehouse calls it “an identity removal machine for big donors” adding, “(t) hrough the hard work of investigators, journalists, and researchers, we have learned that the Koch brothers are among the largest, if not the largest, contributors to DonorsTrust. The Federalist Society’s total annual budget is about $20 million, so this $5.5 million in funding laundered through DonorsTrust provides more than a quarter of its entire budget.”
In perhaps one the worst court decisions, the Federalist Society justices on the Supreme Court struck down the McCain-Feingold Bipartisan Campaign Reform Act of 2002 designed to keep dark money from corrupting our government. In the January 21, 2010 decision Citizens United v. Federal Election Commission, the Supreme Court embraced two flawed theories including that “money” equals “free speech” and that “corporations” are “people” in the meaning of the constitution. The justices knew this travesty would dramatically shift the center of power in American governance to the wealthy and corporations. The People for the American Way point out that “the Court’s watershed ruling is the logical expression of an activist pro-corporatist jurisprudence that has been bubbling up for many decades on the Court but has gained tremendous momentum over the last generation. Since the Rehnquist Court, there have been at least five justices—and sometimes more—that tilt hard to the right when it comes to a direct showdown between corporate power and the public interest. During the Roberts Court, this trend has continued and intensified and in the days ahead the Supreme Court will make decisions on Obamacare and the climate crisis affecting all of our lives.
One of the highly effective political stratagems that Republicans have repeatedly used while campaigning with their evangelical and catholic base is to suggest that they must vote for Republicans to get judicial appointments that will end abortions. We now know that the judicial appointments are all about corporate power and control. Koch Industries, several other Koch-network foundations and trusts, and nearly a dozen wholly anonymous donors have each given over $100,000 to the Federalist Society. Tax documents from 2014, uncovered by the New York Times, show a donation of more than $2 million from the Mercer family, the secretive donors who helped start Breibart News and bankrolled the Trump campaign. These donors are not concerned with abortion. While there may be some incidental overlap, their goal in getting judges who will be favorable to their interests.
The influence does not stop with the Judiciary, it is part of a multipronged, multitiered strategy of a handful of mega-wealthy special interests to control our government. Make no mistake about the influence of dark money, the darkest “toxic money” flows from fossil-fuel interests into the coffers of compromised Republicans who will be quick to vote for each Federalist Society’s candidates nominated to the bench.
The situation may be bleak, but we must not give up or fall into despair. Ruth Bader Ginsburg’s life is a reminder that courage and mental toughness can come even in frail packages. A friend from Portland, Oregon, Bruce Lindner, said it best in a post, “Ruth Bader Ginsburg led a life of constantly swimming upstream. Everything from institutionalized sexism, misogyny, ignorance, bigotry, anti-Semitism, and for her final curtain, five bouts with various types of cancer. Five. Throughout it all, never did she throw up her hands and say; ‘That’s it, I’m so screwed.’ or ‘My life was nice while it lasted.’ To the contrary, she never, EVER complained. Instead, she fought. Because she knew the ultimate beneficiaries of her battles weren’t just herself. They were us.”