Even pre-Trump, Senate Majority Leader Mitch McConnell and the Republicans were focused on reshaping the judiciary in a very partisan, extreme manner. McConnell prevented President Obama’s Supreme Court nominee, the highly regarded jurist Merrick Garland, from even receiving a vote, which at that point may well have led to Garland’s confirmation.
But with Trump as his Oval Office rubber stamp, McConnell has kicked this campaign to capture the judiciary into high gear. He’s already placed more than 200 federal judges—roughly one-quarter of the total—with 53 of them on the important Appellate Courts.
And now that the Senate is back in session, McConnell is taking up judicial appointments once again—instead of bothering with the Heroes Act that would provide desperately needed assistance to the states and hungry families devastated by Trump’s non-handling of the COVID-19 pandemic and its associated economic tidal wave.
The result is that the McConnell-Trump impact on the judiciary may cast a dark shadow upon us all for decades.
But Glenn Kirschner says that need not be the case. A longtime federal prosecutor who now appears as a legal analyst on NBC and MSNBC, Kirschner has a podcast called “Justice Matters” and conducts daily discussions of timely legal issues on YouTube.
I listened to the second podcast in the series: “Unpacking the Federal Courts,” in which he offers a three-point approach to undo some of the harm done by the Republicans’ ramming through a number of unqualified judges via almost always strictly partisan votes.
Before anyone pigeonholes Kirschner politically, I want to underscore that his emphasis is on the judges’ suitability for their positions.
“Presidents have the right to seek out those with their world views and judicial philosophies—there’s nothing wrong with that,” he says. “Elections have consequences.” (How well we’ve learned that hard lesson!)
But, he stresses, that’s different from pushing through people whom the American Bar Association has deemed “not qualified.” And it’s different from picking people solely because of their ideology.
Kirschner states that based on his own experience in the Washington, DC, US Attorney’s Office, he feels he’s knowledgeable about “what it takes to be a good judge.” That office is a very busy place: it’s the only one of the 94 US attorney offices in the country that handles both federal and local criminal prosecutions; the others handle only federal crime violations.
Thus, he’s appeared before many judges. (In the local DC Court, there are between 60 and 65 judges, who are all Presidential appointees.) He estimates that he’s seen about 200 judges—“the good, bad, ugly—though most were really good.”
Although Kirschner doesn’t mention this development in his podcast, in recent years, Republican administrations have brushed aside the ABA’s special status as the nonpartisan, fair examiner of a prospective judge’s qualifications, relying instead on the clearly conservative Federalist Society. I can see why Kirschner looks to the ABA.
Kirschner points out that Obama’s modus operandi with judicial appointments was to submit the potential nominee’s name to the ABA for qualification. If the ABA found that individual “not qualified,” Obama didn’t nominate him or her. “Isn’t that what we expect?,” asks Kirschner.
In contrast, McConnell—disregarding the ABA entirely—has sought out far right and extremely conservative judges, whose nominations Trump doesn’t question, and then maneuvered them into judgeships.
In one case, McConnell nominated a young man named Justin Walker of Kentucky, one of those the ABA deemed “not qualified.” In his investiture ceremony, which Kirschner points out is almost invariably the occasion for a new judge to show his apolitical, judicial temperament and speak “fairly, honorably, impartially, and with civility,” Walker said the following:
“We are winning, but have not yet won,” and warned of “losing our courts to critics who call us terrifying and describe us as deplorable.”
Just months after so clearly demonstrating his judicial restraint and fairness (!), Walker was appointed to the District of Columbia Court of Appeals—a hugely important position. There he wasted no time: he blocked the use of the city of Louisville’s Fairness Ordinance against a photographer who said taking pictures of a gay couple’s wedding was against her religious beliefs.
(It’s worth noting that Walker is 37; McConnell looks for the young’uns for these lifetime appointments. He’s even tried to persuade older judges to retire to give him more firepower.)
So, Kirschner asks,
“How do we unpack? We are heading in the wrong direction. You can be a conservative or a liberal, but you ought to be qualified. And you can’t back discrimination.”
Kirschner’s Three Solutions
First. “Any judge who lied under oath during judicial hearing can be charged with perjury and removed from the bench.” Kirschner is convinced some of them have, including Supreme Court Justice Brett Kavanaugh.
“We let the FBI do a full, fair, apolitical investigation.”
You may recall the FBI was not permitted to complete its investigation of Kavanaugh before he was approved. Kirschner cites an issue about which he believes the evidence that Kavanaugh lied warrants further examination.
This action is designed not to be punitive, Kirschner stresses; its goal is to serve justice.
Second. “We create a Citizens Brigade to be in courtrooms all day every day to keep an eye on the judges. I’ve seen misconduct by judges.” Such judges “will need to be referred and may be sanctioned or removed.”
He refers to uscourts.gov, where there are FAQs: for Filing a Judicial Conduct or Disability Complaint Against a Federal Judge (when someone believes a federal judge “has committed misconduct or has a disability that interferes with the performance of his or her judicial duties.”)
That would be the mechanism the Citizens Brigade would use.
Third. “We can put more federal court judges on the bench.” The Supreme Court in our history has numbered between five and ten justices, he points out. The current number of nine “is not constitutional mandate or requirement. We can maybe add two justices; that’s something we can consider.”
And if, for example, there are two “not qualified” judges on the 2nd Circuit, “we can raise the number of judges by two; that will help neutralize” the impact.
Kirschner also suggests the establishment of an InterBranch Disputes Court (IBDC), which would handle conflicts between the branches of government. A single nonpartisan judge in a designated courtroom would hear and resolve the types of seemingly intractable problems that have been tying up governmental functioning. “In less than a month, [the issue would be] taken out of delays.”
Considering all the court battles and “running out the clock” during the impeachment hearings and other situations of late, that seems like an intriguing idea.
I suspect Kirschner would never be making these recommendations if it weren’t for what we’ve seen over the past several years. Clearly, post-Trump, there is a greater need for citizen activism and reevaluating our longheld norms than ever before.
“Donald Trump has blown chasms of corruption and crime [into our system],” he says. “Now we know what we need to fix. It’s our responsibility and our honor to fix it.”
I’m sure Kirschner isn’t suggesting that Democrats would be apolitical in selecting judges. Nor am I making that assumption in presenting his views. A President Biden would surely appoint those who are compatible with his world views and judicial philosophies.
But I feel confident that a Biden-Harris administration would never seek to appoint a judge whom the ABA found “not qualified.” And with the Democratic “big tent” of varying views, I would expect appointees to be more in synch with where most Americans are on the important issues of our day, such as voting rights, health care, and sensible gun legislation.
Glenn Kirschner is a very serious legal voice who has earned numerous awards throughout his career, including several for trial excellence and one for “fairness, ethics, and trial excellence.” (I look forward to listening to his other podcasts, including one on police reform.)
He has clearly been profoundly shaken by the Trump administration, et al, perversions of the law to which he has devoted his career, and has decided, as he says early in the podcast, that it isn’t enough to define and analyze a problem; one must also offer solutions. And so he has.
What do you think of them?
Assuming a Biden-Harris administration in January, would these steps be accepted in our still-highly polarized country? Are you concerned about “not qualified” judges with firm political agendas making the laws that will govern us all for years to come? Can you see yourself volunteering to spend time in a courtroom as part of a Citizens Brigade? Any other thoughts stimulated by this post?