Why Do Democrats Keep Confirming Trump’s Judges?

On Tuesday, November 3, the American people — I hope — will elect a new president. And that president will take office in January next year, with an immediate task of digging us out of the hole that the Trump administration has put us in.

Some damage done by the Trump administration may be relatively easy to undo. But much of it will not. The federal bureaucracy moves slowly (both a blessing and a curse), trust is difficult to rebuild, and — perhaps most significantly — the court system will be filled with judges who support a radical Republican agenda and will block any efforts at progress.

Under Obama, Democrats were too willing to abide by collegial norms around judicial nominations. In 2013, they finally voted to eliminate the filibuster for judicial nominees, but only had two years with this eased process — and allowed themselves to be hamstrung by archaic “blue slip” rules that enabled the home-state senator of a judge to nix his or her nomination.

Long story short, this left more than 100 vacancies in the federal court system. And that doesn’t include the retirements that naturally come in any cycle.

As much as Senate Republicans may be annoyed by Trump’s tweets, such feelings are far outweighed by the desire to stack the federal judiciary with arch-conservative judges.

One expects no less from Republicans. But one should expect better from Democrats — who keep voting for these judges.

Take last week’s votes for example.

The Senate voted to approve five judges.

One vote was party line: that on Andrew Lynn Brasher, of Alabama, to be United States Circuit Judge for the Eleventh Circuit. The vote was 52–43 (the low number of NOs stems from the absences of Democrats running for president). The NAACP and other leading civil rights organizations had opposed Brasher because of his horrible voting rights record.

A second was almost party line. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) were the only Democrats to vote for Joshua M. Kindred, of Alaska, to be U.S. District Judge for the District of Alaska. He was the former environmental counsel to the Alaska Oil and Gas Association and received low marks from the Alaska Bar Association.

The other three votes though? Wide bipartisan majorities.

The Senate voted 72–23 to confirm Matthew Thomas Schelp, of Missouri, to be U.S. District Judge for the Eastern District of Missouri. He was a part of a team of lawyers that helped former Missouri governor Eric Greitens fend off criminal investigations.

The Senate voted 77–19 to confirm Philip M. Halpern, of New York, to be U.S. District Judge for the Southern District of New York. Halpern is a close friend of Fox News’s Judge Jeanine and once sued Westchester County, New York, to try to block its smoking ban in restaurants.

The Senate voted 81–12 to confirm John Fitzgerald Kness, of Illinois, to be U.S. District Judge for the Northern District of Illinois. Kness is a longtime member of the Federalist Society and the NRA and was a large donor to Rudy Guiliani’s 2008 campaign.

The following were the Democrats who voted NO in each case — with the 8 who voted NO on all three (indeed, all five) highlighted:

NB: The Democrats who were running for president — Bennet, Klobuchar, Sanders, and Warren — were all absent.

Editor. Bibliophile. Gadfly. Environmentalist. Super-volunteer for progressive campaigns. Boston by way of Baltimore, London, NYC, DC, and Philly.

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