Nathan R. Hardy and Richard L. Jolly: How to take on Trump’s judiciary

As the U.S. House of Representatives introduced and debated articles of impeachment against President Donald Trump last week, the Republican-controlled Senate quietly confirmed two more Trump appointees to the U.S. Court of Appeals for the 9th Circuit.

While the media and Washington focused on impeachment, it was business as usual for Senate Republicans, who have made it their mission to reshape America’s courts with young, conservative judges they hope will push the courts to the right for years to come.

The numbers show they are succeeding. Since Trump took office, the Senate has confirmed 175 judges with lifetime appointments – that’s one-fifth of all federal judges. Last week’s confirmations bring the number of appellate judges confirmed to 50, making more than a quarter of all current appellate judges Trump appointees.

Compare these figures with President Barack Obama, who appointed only 55 judges to the federal appeals courts in his eight years in office, largely because of Senate Republicans’ refusal to consider his judicial nominees. What’s more, Trump’s appointees are comparatively young, averaging less than 50 years old – nearly five years younger than the average age of Obama’s appellate court appointees at their nomination.

Trump’s judicial picks are not only young and conservative, but a disproportionate number are also inexperienced or worse. Indeed, more Trump judges have been rated “not qualified” by the American Bar Association than those of any previous president. In just three years, Trump has nominated nine “not qualified” ABA-rated nominees, seven of whom were ultimately confirmed. By contrast, all of Obama’s nominees over eight years received a rating of “qualified” or better.

Lawrence VanDyke is the most recent of these “not qualified” Trump nominees. After conducting a thorough review of VanDyke’s work history, including 60 interviews with his former colleagues, the ABA wrote in a letter to the Senate Judiciary Committee that VanDyke is “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules.” The ABA also expressed concerns that VanDyke did not always have a commitment to being candid and truthful and would not affirmatively commit to treating all who appear before him with fairness, notably members of the LGBTQ community. Nevertheless, last week the Republican-controlled Senate confirmed VanDyke to a lifetime seat.

This rapid reshaping of the courts should concern all Americans, particularly Democrats. Long after Trump leaves office, the increasingly partisan federal judiciary will be poised to strike down any landmark Democratic legislation. Whether it is health care expansion, gun reform or a “Green New Deal,” such legislation will almost certainly be challenged by conservative-led lawsuits and appear before conservative judges. Republicans have been playing the long game on the courts for this very reason: Even if Democrats control the White House and Congress, the courts can constrain policy for decades to come.

On Thursday, the sixth Democratic presidential debate was held in Los Angeles. The debates have either ignored the courts entirely or mentioned them only in passing. That’s a grave mistake. The courts are perhaps the most pressing issue facing Democrats.

How will they enact legislation if there is a court waiting to strike it down? Do they support authorizing new judgeships to remake the lower courts (something that hasn’t happened since 2003, when a Republican Congress added 15 district court seats)? Will they do anything to correct the inequity of Republicans’ historic refusal to hold hearings on Judge Merrick Garland, Obama’s pick to replace Supreme Court Justice Antonin Scalia? In short: Do any of them have a plan?

For years, Democrats have sat on their hands while Republicans meticulously executed a decades-long plan to reshape America’s courts that has paid off under Trump. Democrats must now actively confront the Trump judiciary. This means considering modest proposals like the creation of merit-selection panels for judicial vacancies as well as bold reforms like structurally reforming the Supreme Court by increasing the number of seats and mandating term limits for justices. It also means looking to the future and developing a pipeline of progressive legal talent that better reflects the nation’s values and diversity.

Voters need to know if Democrats can offer a realistic alternative to the current judicial landscape. Democrats should start treating the future of the courts in the same way they offer up proposals for any consequential policy issue. Indeed, it may prove to be the only issue that matters.

Nathan R. Hardy and Richard L. Jolly are co-chairs of the Los Angeles Lawyer Chapter of the American Constitution Society.