S3E36B: Not Qualified: Trump judges and the anarchy to come

The seeds to the war that is to come is being planted by Donald Trump and Mitch McConnell as more and more unqualified judges are being added to the appellate court and circuit courts.

Today its Lawrence J.C. VanDyke a judge whom the American Bar Association (ABA) deemed “not qualified” for the appellate court with which he is being nominated.

But that classification makes no difference to Republicans since the head of their party is equally not qualified.

Under Mitch McConnell and Lindsey Graham, republicans have pushed through a stunning 150 judges to the federal bench. It is a lasting legacy for Donald Trump and foretells big problems for progressives.


This blog post is meant as a marker more than anything else.  A marker of what is to come when long standing regulation is overturned for the thinnest of legal reasons.  Of how moderate democrats helped fail the American people and the democratic party.

A marker on why, if in the future I become an independant and turn my back on many of the things so called democratic politicians believe in, I think moderate democrats and republicans are the problem.

On why I think the next president must enact court reform above and beyond anything thing else. Of why I cannot fully support Bernie Sanders and anyone without at lease considering court reform.

And finally it is a marker of what happened to our civil rights, workers rights.  What happened to Medicare, social security and Medicaid.  Of why the law is no longer working for the little people, the working man and woman.

A future court will strip all of those things away and turn the country over to corporations and the richest amongst us.

This post is also a warning to moderate democrats who decide to wait for bi-partisian agreements.  Who refuse, like Bernie Sanders and Joe Biden and Amy Klobuchar, to get rid of the filibuster or to add seats to the court. 

Talk of revolution without going aggressively at the court like FDR did is a fool’s errand.

What is transpiring on court is one of the greatest tragedies and powerful failures of the democratic party who believe we are not in a war, that want to wait for the “fever” to break by republicans.

If we are not at war, it is because one side is bashing in the face of the other side and the other side is simply not fighting back.

End commentary

Van Dyke, is stunningly unfit for the office he seeks.  In what CNN calls a scathing letter, written by William C. Hubbard, chair of the ABA’s standing committee on the federal judiciary. He says:

“Mr. VanDyke’s accomplishments are offset by the assessments of interviewees that Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules..”

“There was a theme that the nominee lacks humility, has an ‘entitlement’ temperament, does not have an open mind, and does not always have a commitment to being candid and truthful.”

Of course GOP operatives immediately attacked the ABA which has been doing this assessment in a bi-partisan way for decades. Republicans called the ABA a bunch of left wing operatives and one of many, “liberal dark money groups, fronting for trial lawyers who donate millions of dollars to democratic politicians.”

Justin Walker

A pattern of bad justices

But VanDyke is not the only one the president has put on the bench and received a “not qualified” rating by the ABA.   They are:

Leonard Steven Grasz

Charles Barnes Goodwin

Holly Lou Teeter

Jonathan Kobes

Justin Walker

Walker, who is just 37, was in law school a decade ago. Even with this thin record he was nominated 50 to 41 for a district seat in Kentucky.

And last but not least, Brett Kavanagh’s recommendation was reevaluated after allegations he tried to assault a woman in his teenage years was revealed. Kavanaugh was awarded a lifetime seat on the Supreme Court.

Guess which 2020 candidates supported the worst judges?

And just in case you think the issue is just with republicans, you would be wrong.  In two of the above cases, moderate democrats actually voted for these unqualified judges.

Amy Klobuchar voted for Charles Barnes Goodwin along with Michael Bennett who is (or was) running for president in 2020.

Kurt D. Engelhardt to the 11th Circuit, where he is set to be a pivotal vote in deciding whether or not the Affordable Care Act is held up as constitutional. (In total, fifteen Senate Democrats voted to confirm Engelhardt.) In the case of confirming Kevin Christopher Newsom and Elizabeth Branch to the 11th Circuit , Bennet and Klobuchar were the only Democrats running to vote to confirm the two judges, who recently passed on defending sexual orientation as a civil right. (Newsom and Branch received 16 and 24 Democratic votes to confirm, respectively.)

–from the Minnpost

Klobuchar also voted to advance a nominee who was deeply controversial. Judge David R. Stras, a man who clerked for Clarence Thomas and was a Minnesota judge was being appointed to a lifetime position on the court.   

Al Franken was against his nomination in 2018. He expressed his opposition by not return a blue chip.  Klobuchar did.  The senior senator was more concerned with the process than the record of Stras.  

That blue chip allowed him to advance to a hearing and later, the senator and 2020 nominee for democratic president, voted with republicans to advance him to the court.   It’s interesting to note, Franken’s replacement Tina Smith voted no.

I wonder if Senator Amy will be asked about these votes at the next debate or if she is going to continue to sail through unscathed?

Demand Justice, who rates democratic senators for their support or lack thereof, of Trump judges notes:

Due to their frequent votes to advance and confirm Trump’s nominees, Sens. Joe Manchin (W.Va.), Amy Klobuchar (Minn.), Tom Carper (Del.), Mark Warner (Va.), and Michael Bennet (Colo.) all received F grades from Demand Justice.

When to say no

McConnell and Trump have been batting, almost 1000 when it comes to these nominations.  Only a handful of times has republicans balked at a judge.

Bloomberg reports, the committee had to halt the nomination of two  circuit court nominees, White House lawyer Steven Menashi and U.S. District Judge Halil Suleyman Ozerden.

Susan Collins, up for re-election in Maine, told a liberal  advocacy group she would not support Menashi due to past writings on race, abortion, sexual assault, and other issues.  The judge told lawmakers he was against discrimination.

Two republican senators also came out against Ozerden.  Ted Cruz and Josh Hawley because they felt he was not conservative enough for the fifth circuit of appeals.

The two would have been appointed to New York’s second circuit of appeals which would have made the majority democrat appointed judges to majority republican appointed judges.

Impeachment could stop this mess

There is reporting if the House impeaches Donald Trump, the senate would be forced to drop everything and begin impeachment trial on Donald Trump.

From the NYTimes:

When virtually all legislative activity ground to a halt during the impeachment trial of President Bill Clinton in 1999, senators had already resolved the most pressing item on their agenda: fully funding the government.

With just a handful of legislative days before the current short-term spending bill expires, lawmakers have begun to discuss extending that funding into early 2020 to avoid running out of money later this year if senators are mired in an impeachment trial with little time for legislative work.

The uncertainty about impeachment has aggravated the existing disarray in the annual spending process. As they did last year, lawmakers have struggled to agree on how to fund the Trump administration’s efforts to build a wall at the southwestern border. While they set overall funding levels in a budget deal earlier this year, lawmakers have yet to agree on how to divide that money among domestic programs.

Could this include stopping the senate from adding judges?

A lasting legacy of failure for democrats

Final commentary on the judges.  Many, including yours truly, believe Obama dropped the ball when it came to judges.

Brookings looked back at this in 2018 and concluded (bold, underline and parentheticals added):

Some of the 2016 vacancies Trump inherited occurred after any confirmation clock would have stopped. Still, of the 21 circuit vacancies he’s filled as of late May and others he soon will, up to seven could have had Obama appointees under pre-2015 norms. So too, up to 71 of the district vacancies he (Trump) inherited and has only begun to fill could have had Obama appointees.

Trump has filled six of the seven circuit vacancies that had Obama nominees. The seventh, a December 2015 California vacancy, remains without a Trump nominee, probably the result of bargaining with ranking Judiciary Committee member Dianne Feinstein (remember this was written back in 2018 so that may no longer be the case).

Trump also filled two other vacancies that date from 2012 and 2013, both in Texas. They went nominee-less under Obama, almost certainly because Texas’s Republican senators used their blue-slip veto threat to thwart any nominations. (Previously, if either-party home-state senators opposed a nominee by not returning the Judiciary committee chair’s blue-paper inquiry about their support, it stopped the nomination. A threat to do so made it pointless even to submit the nominee in question.) Trump circuit nominees are now proceeding to confirmation over home-state senator objections.

Trump inherited 71 district vacancies, not including those created after July 2016. Under previous norms, the 114th Senate would have confirmed a good many of Obama’s 42 unconfirmed pre-May 2016 nominees. Trump has submitted 30 nominees for those 42 vacancies, nine of whom have been confirmed. Four of his nominees to nominee-less vacancies under Obama have also been confirmed, as have four nominees to vacancies occurring in late 2016 or beyond.

Trump renominated 11 unsuccessful Obama nominees, most the result of White House bargaining with home-state Republicans. So, the 114th’s Senate’s slow-walking won’t have kept them from eventual confirmation, but it extended the vacancy periods by one or more years, with attendant strain on sitting judges and litigants.

The 114th Senate contributed to the contentiousness and polarization of the once semi-ministerial task of confirming judge. There is no reason to expect the process to get any better. We are reaching the point that confirmations stop unless the same party controls the White House and Senate.

Final thought:

So, when you hear some judge say, “there are no Trump judges or Obama judges or Bush judges”.  Now you know the truth.

But the future does not bode well for the democrats and progressive. The movements of the 60’s expanded rights that are now under threat.

When that realization trickles down to the American people, one has to wonder what will happen next.

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