'Trump Judges Are Showing Just How Extreme They Are'
Janine Jackson
Janine Jackson interviewed People For the American Way’s Elliot Mincberg about Trump’s judicial appointments for the June 6, 2020, episode of CounterSpin. This is a lightly edited transcript.
People For the American Way (4/19)
Janine Jackson: Donald Trump has done so many high-profile egregious things as president—building a wall on the Mexican border, calling white supremacists “very fine people” and trying to ban Muslims from the country—that it can distract from other behind-the-scenes harms his administration is enacting. Importantly, harms that will outlast his presidency. At the top of that list: judges.
Indeed, this week the Senate ignored numerous issues, but did vote to confirm Federalist Society member John Badalamenti as federal judge in Tampa, Florida. That makes him Trump's 197th judicial appointment. Appointments that last a lifetime.
Particularly as some look to courts to protect us from the outrages of the Trump White House, it's critical to see how this putative check on executive power can be turned against that mission, and to name the names of those doing it. That's what People For the American Way are doing with Confirmed Judges, Confirmed Fears, a blog series and database of Trump-appointed judges and the impacts they're having.
We're joined now by People For senior fellow Elliot Mincberg. He joins us by phone from Maryland. Welcome to CounterSpin, Elliot Mincberg.
Elliot Mincberg: Pleasure to be here. Thank you.
JJ: If we could first spend a minute on the project itself: Confirmed Judges, Confirmed Fears, is a blog series, but it's also a searchable database. What's in it? And how would you hope that folks would use it?
Brett Kavanaugh
EM: What is in the database and in the blog entries are a series of posts focusing on decisions involving Trump judges who are on the appellate courts—not the district courts, but the courts one step below the Supreme Court, where most of the critical legal decisions are made—and, of course, the Supreme Court itself.
And what we've looked at are all cases where there's a difference of opinion among those judges—so, for example, a case where a Trump judge has written a majority opinion but there's a strong dissent, sometimes, frankly, even by other Republican judges. Or a case where the majority has issued one decision but a Trump judge dissents, and wants to take the law even further to the right.
And what you can find on this database are pretty much a description of all such cases—other than those that relate to issues like one corporation versus the next. Cases that relate to discrimination issues, environmental issues, conflicts as to presidential power: You name the issue, you'll find it there. And what you will find is just how extreme the Trump judges are.
JJ: Let's talk about some examples that illustrate the impact that a judge can have. I know that you've just written about the role federal judges can play in…well, here's a thing: police accountability.
EM: It's straight out of today's headlines, but, frankly, the Trump judges were there before the recent headlines started.
JJ: Right.
People For the American Way
EM: There’s a doctrine that's been referred to, called qualified immunity, in which courts sometimes rule that a police officer is immune from a lawsuit for damages, no matter how severe their misconduct may be. And we have documented cases where police shot an unarmed person in the back, literally arrested a young African-American man for doing nothing more than going to a white suburban shopping center and looking for space heaters on a cold winter night, another case where a young man was shot, fled to his father's yard, then was tased and died as a result. In just about all of these cases, you have Trump judges who wind up casting the deciding votes to rule that there should be absolutely no liability for these police, for this incredible misconduct.
And that is something that needs to change. Congress, I know, is considering legislation on the issue. Frankly, what really needs to change is getting judges in who appreciate the need for appropriate accountability with respect to the police.
JJ: One Trump-appointed judge whose name folks will know—I really appreciate the database, because it calls up folks in cases that you won't have heard of—but one judge that folks will know about is Brett Kavanaugh, on the Supreme Court, and also deeply relevant right now. He just wrote this kind of strange dissent, pushing for an exception for churches to be able to stay open in the pandemic. What was striking to you there?
EM: What is really striking about that and other cases involving the pandemic, which is another area where Trump judges have shown their stripes recently, was, most of the time, Trump judges have been very supportive of government action during the pandemic, even when that action takes away individual rights and is very harmful. For example, in every case where Trump judges have voted in the lower courts, they have ruled, or tried to rule, to sustain restrictions on abortion, even though the medical evidence is quite clear there was no good reason to do that.
In this case, the issue related to a church, a megachurch in California, that wanted to have a large church service, with many people shoulder to shoulder, clearly risking serious spread of the pandemic. And the lower court and the Supreme Court basically upheld what the state of California was doing. But Brett Kavanaugh wrote a dissent, joined by the other Trump justice, Gorsuch, as well as by Clarence Thomas, that said this was improper, that the church should have been allowed to meet, maybe do a little social distancing, but should have been allowed to do that. And, in fact, there was a similar situation in the court of appeals, where, again, the majority ruled for California, but another Trump judge filed the dissent, arguing against. So Covid-19 is yet another from-the-headlines example of how Trump judges are showing just how extreme they are.
JJ: And John Roberts took apart that Kavanaugh dissent, and found what seemed like some pretty basic flaws in it. And I'm also thinking about the election eve ruling the Supreme Court made that forced Wisconsin to hold their in-person primary. Kavanaugh’s position just seems, you know, just seems kind of dumb, like, beyond ideology. It just seems like bad lawyering. There are evident mistakes that you can pick out.
Elliot Mincberg: "What we see from President Trump's nominees to these powerful courts of appeals and the Supreme Court is a consistent right-wing ideology, frankly going further even than some Reagan and Bush appointees."
EM: Well, I do agree with you. I think you can pick out the evident mistakes, but there's no question that ideology is motivating that. Unfortunately, in the Wisconsin case, John Roberts went along with Kavanaugh and the other right-wing justices. So in that case, it was a majority. And there were tens of thousands of individuals in Wisconsin who couldn't cast their vote, or who had to risk infection in order to do it in person. And some of them, in fact, have gotten infected, as subsequent reports show.
But, again, what we see from President Trump's nominees to these powerful courts of appeals and the Supreme Court is a consistent right-wing ideology, frankly going further even than some Reagan and Bush appointees. There are numerous examples where the dissenters have not been just Democratic appointees, but Republican appointees, who have said, “These guys are going way too far in distorting the law in a way that helps big corporations, helps the powerful and hurts the ordinary person.”
JJ: It's not part of the project, per se, but you've had a long career in government and the law, and I can't help but ask your thoughts on the country's top lawyer, Attorney General Bill Barr. Does his behavior look to you like a guy fighting for a particular vision of law that he supports, or something else?
EM: I think Attorney General Barr is a disgrace. I remember, frankly, because I was working in the area when he was attorney general under the first President Bush, where he was further to the right than Bush wanted to be. Now he's found a president who is willing to push, as far as he will, these extreme views on presidential power, on limiting the authority of Congress to protect the American people as they've tried to do.
And Barr, I think, is nothing short of a disgrace to the office that he holds. He's refused to testify recently in front of the House Judiciary Committee. There are scheduled to be hearings involving a whistleblower, too, from the Department of Justice. I strongly recommend people tune into that. The only reason we don't spend more time on Barr is because we don't want to divert attention from just how terrible Trump has been. But he has quite a partner in Bill Barr as attorney general.
JJ: Finally, Confirmed Judges, Confirmed Fears, which is searchable by judge or by issue, the database—it seems like a terrific resource for reporters. Is there any role for the public here, besides awareness of the role that these federal judges play?
EM: Absolutely. In addition to awareness, it's important to take a look at what has happened with respect to judges that your own senators have voted for. We've worked with groups in Iowa to do an ad focusing on Joni Ernst, for example, and indicating some of the terrible decisions by judges that she's voted for, and what that means for the future.
And I think people can essentially do the same themselves, to look up by judge, by issue, and then question their senators, question the president, question others: “What are you doing? Why are you continuing to confirm these folks?” There are several up right now, that may be voted on soon in the Senate, that are right out of the Trump/Federalist Society playbook. I think people should do everything they can, based in part on this tool and other work, to oppose the confirmation of those judges.
JJ: We’ve been speaking with Elliot Mincberg, senior fellow at People For the American Way. You can find Confirmed Judges, Confirmed Fears on their website, pfaw.org. Thank you very much, Elliot Mincberg, for joining us today on CounterSpin.
EM: You're very welcome. Thank you.
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