People For the American Way

Holding Senators Accountable for Voting to Confirm Bad Judicial Nominees

Federal Update
Holding Senators Accountable for Voting to Confirm Bad Judicial Nominees

“Everyone should have their day in court.”

This common metaphor is a powerful one, because it brings to mind our ideals of fairness and justice. In a court of law, anyone—poor or wealthy, popular or reviled, powerful or powerless—who believes their rights have been violated should feel confident that the judge will decide their case free from bias. Even if they lose, the legitimacy of our entire third branch of government depends on their feeling that they got a fair hearing.

So it is disturbing that President Trump has nominated so many narrow-minded elitists to lifetime positions on the federal bench. Moreover, despite obvious indications that their biases and preconceptions would do an injustice to litigants and undermine the judicial system, virtually every Republican senator has voted in lockstep to confirm them.

Below is a far from exhaustive list of Trump nominees with particularly disturbing records across a wide variety of issue areas.

LGBTQ Equality

Kyle Duncan
Confirmed to the Fifth Circuit

  • co-founded a self-described “boutique law firm” which he has regularly used to help lead the far right’s efforts to transform religious liberty from a shield into a sword to dismantle laws that protect people from harmful discrimination
  • has chosen to represent clients fighting in the courts against custody and adoption rights for gay people, against transgender students’ ability to use the appropriate bathroom, and against marriage equality
  • has spoken of LGBTQ equality as a zero-sum struggle in which respect and rights for LGBTQ people means marginalizing people with “traditional” beliefs. This implies approval of a social structure in which the LGBTQ community is marginalized as “other” in all contexts and mistreated accordingly.

Allison Jones Rushing
Confirmed to the Fourth Circuit

  • supports the Alliance Defense Fund (ADF), one of the far Right’s leading anti-LGBTQ organizations, by participating in its Blackstone Legal Fellowship, which helps mentor and advance like-minded right-wing lawyers

Stephen Clark
Nominated to the Eastern District of Missouri

  • claimed that “one of the next evolutions of same-sex marriage is polygamy” and misled the Judiciary Committee on the prevalence of polygamy litigation

Mark Norris
Confirmed to the Western District of Tennessee

  • personally intervened in the divorce proceedings of a lesbian couple he didn’t know and urged the judge to ignore Obergefell and not treat the couple as married for the purpose of child custody laws

Howard Nielson
Nominated to the District of Utah

  • argued that a judge in a marriage equality case should have recused himself because he was gay

Matthew Kacsmaryk
Nominated to the Northern District of Texas

  • deputy general counsel at First Liberty Institute (FLI), a far-right legal organization that pushes the misuse of religious liberty to discriminate
  • has opposed extending anti-discrimination protection to LGBTQ people in areas including labor rights, hospital patient rights, fair housing, and programs that protect women under the Violence Against Women Act
  • demeaned and mischaracterized supporters of 20th-century divorce laws, LGBTQ equality, and abortion rights as seeking “public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults”

Abortion Rights and Contraception

Steve Grasz
Confirmed to the Eighth Circuit

  • crusaded against abortion rights as Nebraska solicitor general for more than a decade
  • ABA panel unanimously (!) found him unqualified because they doubted he could put his personal biases aside as a judge

Amy Coney Barrett
Confirmed to the Seventh Circuit
On Trump’s Supreme Court shortlist

  • signed letter calling the Obama administration’s ACA contraception coverage accommodation for religiously affiliated employers an “assault on religious liberty”

Wendy Vitter
Nominated to the Eastern District of Louisiana

  • lied under oath about urging the distribution of widely-discredited, unscientific misinformation about abortion and contraception (such as that women using birth control pills are more likely to die a violent death, or that abortion increases the risk of breast cancer)

Matthew Kacsmaryk
Nominated to the Northern District of Texas

  • demeaned and mischaracterized supporters of 20th-century divorce laws, LGBTQ equality, and abortion rights as seeking “public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults”

Democracy (voting rights / money in politics / corruption)

Amul Thapar
Confirmed to the Sixth Circuit

  • As a district court judge, blatantly went against Supreme Court precedent in order to strike down a state ban on state judges contributing to political campaigns. Supreme Court precedent from the 1970s forward applies less strict scrutiny to contribution limits than to spending limits, but Thapar applied the higher level of strict scrutiny anyway. This would make it even harder to keep money out of politics. He was reversed by a unanimous Sixth Circuit panel.

Kyle Duncan
Confirmed to the Fifth Circuit

  • defended North Carolina’s monster voter-suppression law

James Ho
Confirmed to the Fifth Circuit

  • wrote that the U.S. should “abolish all restrictions on campaign finance”

John K. Bush
Confirmed to the Sixth Circuit

  • called public funding of campaigns “constitutionally dubious”

Eric Murphy
Confirmed to the Sixth Circuit

  • defended Ohio’s disenfranchising voter purge system and helped persuade the Department of Justice to reverse its position in that case from opposing the law to supporting it

Michael Truncale
Nominated to the Eastern District of Texas

  • wrote that we need in-person voter ID laws because “voter fraud makes a mockery of our elections,” but admitted under oath that he had no research or personal experience to back up that claim

Howard Nielson
Nominated to the District of Utah

  • part of the politicized hiring scandal at the Bush Justice Department; the DOJ’s inspector general said Nielson should never be allowed to work at any federal agency

Racism Against African Americans

Andrew Oldham
Confirmed to the Fifth Circuit

  • refused to say that Brown v. Board of Education was correctly decided

Neomi Rao
Confirmed to the D.C. Circuit

  • refused to say that Brown v. Board of Education was correctly decided

Kenneth Lee
Nominated to the Ninth Circuit

  • refused to say that Brown v. Board of Education was correctly decided

Mark Norris
Confirmed to the Western District of Tennessee

  • As state senator, pushed through a bill that made it much harder for cities to remove monuments honoring the Confederacy or the founder of the KKK

Michael Truncale
Nominated to the Eastern District of Texas

  • called President Obama “an un-American imposter”

Wendy Vitter
Nominated to the Eastern District of Louisiana

  • refused to say that Brown v. Board of Education was correctly decided

Healthcare / ACA (see also: abortion rights and contraception)

Chad Readler
Confirmed to the Sixth Circuit

  • signed a legal brief for the DOJ in 2018 arguing that the ACA’s protections for pre-existing conditions are unconstitutional. The brief was so dishonest, poorly reasoned, and antithetical to the rule of law that three career lawyers refused to sign their names to it.

Amy Coney Barrett
Confirmed to the Seventh Circuit
On Trump’s Supreme Court shortlist

  • wrote that the Affordable Care Act’s coverage requirement was unconstitutional and criticized Chief Justice Roberts for “push[ing] the Affordable Care Act beyond its plausible meaning to save the statute.”
  • agreed with Justice Scalia’s dissent in King v. Burwell that “the statute known as Obamacare should be renamed ‘SCOTUScare’ in honor of the Court’s willingness to ‘rewrite’ the statute in order to keep it afloat.”

Native Americans’ Rights

Eric Miller
Confirmed to the Ninth Circuit

  • substantial litigation against the rights and sovereignty of American Indian tribes
  • opposed by National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF), only the third time they have ever opposed a federal judicial nomination

Immigrants’ Rights

Mark Norris
Confirmed to the Western District of Tennessee

  • led an effort to prevent any Syrian refugees from being resettled in Tennessee

Andrew Oldham
Confirmed to the Fifth Circuit

  • litigated against Deferred Action for Parents of Americans (DAPA), which kept it from going into effect

Campbell Barker
Nominated to the Eastern District of Texas

  • litigated against DAPA, which kept it from going into effect

Environment

Andrew Oldham
Confirmed to the Fifth Circuit

  • called the EPA illegitimate and repeatedly challenged the EPA’s Clean Air Act efforts as Texas Deputy Solicitor General

Patrick Wyrick
Nominated to the Western District of Oklahoma
On Trump’s Supreme Court shortlist

  • partnered with then-Gov. Scott Pruitt and industry to attack environmental protections as Oklahoma’s solicitor general
  • believes that the Constitution prohibits many if not most actions by federal agencies starting with the New Deal

Campbell Barker
Nominated to the Eastern District of Texas

  • challenged the legality of the EPA’s 2015 Clean Power Plan (as TX deputy solicitor general)

Neomi Rao
Confirmed to the D.C. Circuit

  • removed mentions of climate change from key EPA reports as Trump’s “deregulatory czar”

Michael Truncale
Nominated to the Eastern District of Texas

  • called the EPA a “job killer”
  • wrote an article supporting the election of Donald Trump in part to block the Clean Power Plan and the Waters of the United States rule

Undoing the New Deal

Andrew Oldham
Confirmed to the Fifth Circuit

  • stated that “the entire existence of this edifice of administrative law is constitutionally suspect”
  • was deeply involved in writing “The Texas Plan,” a 92-page manifesto against “the administrative state” that included proposals for constitutional amendments to destroy it

Don Willett
Confirmed to the Fifth Circuit
On Trump’s Supreme Court shortlist

  • wrote that courts should be more aggressive in reviewing and striking down laws and rules that protect health, safety, and social welfare but that (in his view) arguably violate economic rights like freedom of contract
  • criticized foundational 1930s-1940s Supreme Court decisions upholding New Deal programs and similar laws

Patrick Wyrick
Nominated to the Western District of Oklahoma
On Trump’s Supreme Court shortlist

  • believes that the Constitution prohibits many if not most actions by federal agencies starting with the New Deal

Death Penalty / Criminal Law

Stephanos Bibas
Confirmed to the Third Circuit

  • wrote about sentencing most convicted defendants to electric shocks and Tasers rather than prison

Campbell Barker
Nominated to the Eastern District of Texas

  • urged retrial of a man with an IQ of 51 who had been illegally imprisoned for 32 years after a court had overturned his conviction

Allen Winsor
Nominated to the Northern District of Florida

  • supported a lethal injection regime that was likened to being burned alive
  • tried to prevent criminal defendants subject to the death penalty the right to demonstrate an intellectual disability if they score higher than 70 on an IQ test

Religious Liberty: Church-State Separation and Free Exercise (see also: LGBTQ Equality and Abortion Rights & Contraception)

Allison Jones Rushing
Confirmed to the Fourth Circuit

  • fundamentally misunderstands the Establishment Clause and its supporters, calling them “delicate plaintiffs with eggshell sensitivities who claim deep offense at the acknowledgement of any beliefs that conflict with their own”

Allison Eid
Confirmed to the Tenth Circuit
On Trump’s Supreme Court shortlist

  • dissented in Colorado Supreme Court case and would have upheld voucher program as not in violation of the state Establishment Clause that prohibits government aid to religion; suggested that the state constitutional provision was based on anti-Catholic animus and unenforceable under U.S. Constitution

Steve Grasz
Confirmed to the Eighth Circuit

  • proposed amending Omaha’s charter to allow people and businesses to use religion as a justification to ignore the city’s anti-discrimination law. Although the proposed amendment was written generally to apply to all anti-discrimination laws, he “defended” it by saying it would in practice only apply to laws protecting LGBTQ people.

Tags:

Allen Winsor, Allison Eid, Allison Rushing, Amul Thapar, Amy Coney Barrett, Andrew Oldham, Chad Readler, Don Willett, Eric Miller, Eric Murphy, Howard Nielson, J. Campbell Barker, James Ho, John K. Bush, Kenneth Lee, Kyle Duncan, Lower Federal Courts, Mark Norris, Matthew Kacsmaryk, Michael Truncale, Neomi Rao, Patrick Wyrick, Protecting Lower Courts, Stephanos Bibas, Stephen Clark, Steven Grasz, Wendy Vitter