ELLIOT MINCBERG: Progressives and right-wingers agree that perhaps the most important part of the Trump presidency so far has been his remaking of the federal judiciary. It was two years ago this month that the first of Trump’s lifetime federal appointments, Neil Gorsuch on the Supreme Court began to actually start issuing decisions. So we looked at two years’ worth of decisions, not just by the two Supreme Court justices, but also by the 37 lifetime federal court of appeals judges on the level just below the Supreme Court, which essentially is the Supreme Court to most Americans because the Supreme Court hears so few cases each year.
We looked at over 100 cases in which those cases judges were involved and had very distressing results, finding that already they have done enormous harm to workers, to consumers, to voters, to immigrants, to reproductive rights and many more. And that’s not just according– I want to make clear – to progressives or progressive judges in many of these cases, they always had dissent or a difference of opinion by a judge appointed by Ronald Reagan or George W. Bush, who felt that the Trump judges were in fact going too far, showing just how extreme they are and continue to be.
BETWEEN THE LINES: Now, I wondered if you would take an example of some of the decisions that have been made by Republican- confirmed judges appointed by Donald Trump.
ELLIOT MINCBERG: Sure. You literally can go down the list. At the Supreme Court level, you have decisions where Neil Gorsuch was the deciding vote last year that upheld an Ohio purge of over a million voters; upheld the Trump Muslim immigration ban; reversed a 40-year-old Supreme Court decision that protected workers’ right to organize. This year in even Kavanaugh have made the difference in cases that could very well have come out the other way if Kennedy was on the Supreme Court; upholding at least temporarily the Trump transgender military ban and ordering an execution of a prisoner before anyone could even consider his very serious religious liberty claim.
But then go down to that Court of Appeals level that I was talking about. The decisions come one right after the next – one vote, one decision where a Trump judge voted to allow Autozone to racially segregate their workplaces. Another one where the Trump judges on the 6th Circuit all got together and had enough votes between them and other conservative judges to reverse a prior decision and to uphold Ohio’s ban on state funding of Planned Parenthood for healthcare just because with their own funds, they use some funds to provide abortions. Cases where Trump judges have thrown out employment discrimination cases, said that older workers can’t bring challenges to maximum experience requirements that tend to exclude older workers. In one case, what the Trump judges and other conservative judges did was so bad in employment discrimination cases the dissenters accused them of dropping an anvil on the employer’s side of those very important cases. Cases involving the environment. Those are just a few examples.
BETWEEN THE LINES: How can the legislative branch counter some of these rulings by these Trump-appointed federal judges that undermine progress that’s been made over many, many years on environmental laws, discrimination regulations, reproductive rights, worker’s rights, LGBTQ rights, just to name a few. Is there an opportunity if a progressive Democrat for instance, were to take the presidency and Democrats held the House and Senate. How easy would it be to reverse some of these federal court rulings?
ELLIOT MINCBERG: Many of them can be reversed because they relate to interpretations of laws and Congress, of course, can rewrite those laws. But unfortunately, many of them are constitutional decisions that are hard to reverse and that’s why we are strongly recommending that what people need to do is to contact their senators now – Republican and Democratic – and make clear they should not approve any more of these Trump judges. And when the election comes in 18 months, it’s critical that the president and the Republican Senate be held accountable for the votes to put these awful judges on the federal bench.
BETWEEN THE LINES: Well, one last question here and that would be the credibility of the judicial branch in the United States right now. An increasing number of people now see the judicial branch as a partisan battleground, not a functioning or fair system to mete out just and fair rulings. How much are you concerned and people for the American way concerned with the credibility of the judiciary right now?
ELLIOT MINCBERG: I think that’s a very legitimate concern. I believe that President Trump has contributed to it very strongly by his continuing to criticize any judge that doesn’t fall in line behind his policies. And I do think more and more people are beginning to believe that’s true. And as a result of the appointments by President Trump and to a certain extent by President Bush before him, I think judges do seem to be becoming more partisan. We hope that what we will see in the future after President Trump, and maybe even while he’s still there, if people can put enough pressure on the Senate, is the appointment of fair-minded constitutionalists who will take a look at these issues in a fair and appropriate way, not in a court with political ideology.
