People For the American Way

No Lame Duck Confirmation of Trump Judges

News and Analysis
No Lame Duck Confirmation of Trump Judges

A week after the election that made Donald Trump a one-term president, the COVID-19 crisis continues to worsen. More than 10.4 million people in the United States have contracted the disease, with nearly 250,000 having died of it. The number of new cases per day continues to increase and the American people are facing dire circumstances. Yet rather than take action to help Americans harmed by the pandemic, Senate Republicans’ top priority is to confirm more of Trump’s judicial nominees in the short time he has left in office.

Not only did the American people vote to replace President Trump, we also did so in record numbers.  Our nation is enduring the final days in office of a president who, even after defeat, continues to subvert the rule of law, ignore democratic norms, and engage in a frontal assault against free and fair elections. An individual so antagonistic to our democratic system of government cannot be allowed to continue to select the judges who are supposed to protect our rights and our democracy.

As covered in People For the American Way’s Confirmed Judges, Confirmed Fears series (which is searchable by judge or by issue here), Trump’s judges have reliably been putting the interests of the powerful ahead of the rights of the rest of us in areas including corporate power, police violence, access to health care, racial justice, and LGBTQ+ equality. In the runup to Election Day, we saw the consequences of stacking the courts in the area of voting rights. Trump’s judges reliably bent the law, made up new legal theories, and distorted logic as they abetted their fellow Republicans’ efforts to prevent a free and fair election. For instance, they upheld Florida Republicans’ move to take away the right to vote of formerly incarcerated individuals; blocked a lower court order requiring Georgia to have paper backups of online voter records; banned curbside voting for elderly voters and those with disabilities in Alabama; made it harder to correct absentee ballots with signature problems in Tennessee; and limited access to ballot drop boxes in Ohio and Texas.

The American people saw all of this. We also saw the Republican zeal to install Amy Coney Barrett on the Supreme Court before Election Day, a complete turnaround from their professed “principles” in blocking Merrick Garland in 2016. That is one reason that a majority of voters who considered the Supreme Court an important factor in their vote chose Joe Biden over Donald Trump, a change from previous elections when conservative and Republican voters cared more about the Court.

And now the current Republican majority is once again applying different rules to different people, based solely on what advantages them rather than any principle. Four years ago, during President Barack Obama’s last year in office, Republicans controlling the Senate stopped confirming his judicial nominees in July. They blocked not only Judge Garland but also more than 50 circuit and district court nominees from receiving a vote during the remaining half year of Obama’s presidency.

That includes Seventh Circuit nominee Myra Selby of Indiana, a Black woman who would have filled the vacancy that Republicans eventually gave to Amy Barrett. Because Republicans blocked Selby, there are currently no Black judges on the Seventh Circuit. That lack of diversity would continue if the Senate confirms Trump’s choice to replace Barrett, Thomas L. Kirsch, for whom Lindsey Graham is holding a hearing next week, less than seven weeks before the end of this Congress.

Myra Selby was in good company. Because Republicans blocked Abdul Kallon from the Eleventh Circuit, no Black Alabaman has ever served on that court. Because Republicans blocked Rebecca Haywood, no woman of color has ever served on the Third Circuit. Because Republicans blocked D.C. district court nominee Abid Riaz Qureshi, the federal judiciary has never had a Muslim judge. Republicans blocked dozens of qualified Obama nominees so those vacancies could instead be filled with Trump judges who reliably put the interests of the powerful ahead of the rights of the rest of the rest of us.

Yet during the last weeks of Trump’s presidency, they are rushing to confirm his nominees, including several McConnell has scheduled for a vote the week of November 15. These include Kansas district court nominee Toby Crouse, who has used his position as state solicitor general to curtail abortion rights, make it harder to vote, and target certain groups for discrimination. Republicans are also pushing Kathryn Mizelle, a far-right ideologue for a Florida district court who only graduated law school a few years ago and has almost no litigation experience. Also being teed up for confirmation is Stephen Vaden, who has a long record defending his fellow Republicans’ voter suppression schemes and who has sought to build a federal workforce that ignores science and puts personal loyalty to Donald Trump over loyalty to the nation, our laws, and our Constitution.

By corrupting the judiciary, Senate Republicans are endangering the welfare of people across the country, especially communities of color, low-income people, and other historically marginalized groups. Repairing our federal courts must be a priority. We expect President-elect Biden to nominate fair-minded constitutionalists to the bench so the federal judiciary can fulfill its mission of protecting our rights and our democracy. Those, and not Trump judges, are the types of nominees senators should be putting on the bench.


lame duck congress, Lower Federal Courts