Since taking office, Donald Trump has been hard at work remaking the federal courts in his own image. Our courts are supposed to protect the rights of all Americans, but Trump is now stacking them with far-right partisans willing to rubber-stamp his extreme agenda—from banning Muslims from entering the country to gutting the Affordable Care Act.
Federal judges are appointed for life. Long after Trump leaves office, his takeover of the judiciary will keep his hateful vision for America alive for decades to come. Trump has bragged that his takeover of our courts will be “country-changing,” and his allies in Congress agree. Senate Republicans are changing the way the Senate works to install Trump’s judges as quickly as possible ahead of the 2020 election. Mitch McConnell said his goal in advancing Trump’s judges is to move America “right of center.” Even if a Democratic President and Democratic Senate are elected in 2020, any progressive reforms they enact–from expanding voting rights to Medicare For All to a Green New Deal–will come under threat before a judicial branch that has been remade by Trump.
But Trump and Senate Republicans aren’t carrying out this hijacking of our courts on their own. Astoundingly, a majority of Democratic senators have voted for at least 60% of Trump’s judges. Several Democrats have even voted for judges on Trump’s Supreme Court shortlist, even though Trump told us during his campaign for president that his shortlist would only include people who would roll back a woman’s right to have an abortion and even though Trump said he preferred judges who would vote to get rid of Obamacare.
While Democrats are in the minority in the Senate, they still get the chance to register their support or approval on every one of Trump’s judges with the votes they take on the Senate floor. Furthermore, according to Senate tradition, the two senators representing the home state of each judicial nominee are given a special chance to express support or approval upon nomination. This tradition is known as the “blue slip” – referring, literally, to a blue slip of paper that home-state senators are asked to sign and return if they are willing to allow a nominee from their state to advance towards confirmation. An unreturned or negative blue slip is a way to signal disapproval. Why would any Senate Democrat ever return a blue slip for one of Trump’s extreme judges, you ask? Good question. But it happened all too frequently in Trump’s first two years in office. The Senate voted on 14 Trump circuit court nominees represented by a Democratic senator, and 11 received blue slips––including four who are on Trump’s Supreme Court shortlist.
If we truly want to defeat Trump’s agenda, Democrats can’t surrender this fight. Senate Democrats ought to be opposing each and every judge that Trump nominates. These are not ordinary times, and these are not ordinary nominees. A recent Demand Justice study of Trump’s confirmed judges found that on average, Trump judges are 20% more extreme ideologically than even George W. Bush judges. Democrats in the Senate have been too slow to recognize the crisis that is underway and continue to support many of these nominees as if they are within the ideological mainstream.
Democrats can no longer be complicit in the confirmation of Trump’s judges:
- Under no circumstance should Democratic senators greenlight Trump’s takeover of the federal bench by returning “blue slips” for his nominees;
- Democratic senators should not vote to advance or confirm nominees who are ready and willing to carry out Trump’s agenda in our courts; and
- Democratic senators must especially do everything in their power to defeat nominees who are on Trump’s Supreme Court shortlist.
This report card documents Senate Democrats’ response to the far-right capture of our courts during Trump’s first two years in office. Senators receive a letter grade that reflects their willingness to fight Trump’s judges. Democrats who don’t fight hard enough were graded accordingly.
Demand Justice graded Democratic senators still serving in Congress based on their actions to support or oppose Trump’s takeover of our federal courts during his first two years. This included measuring their Senate floor votes on Trump’s Supreme Court, circuit court, and district court nominees and their use of blue slips for circuit court nominees from their home states.
- Senators are penalized for voting to advance Trump’s Supreme Court justices and circuit judges. In most cases, the vote scored is the motion to invoke cloture (end debate) on each nomination, allowing it to proceed to a final vote. Senators who vote to end debate are effectively aiding and abetting the GOP strategy to confirm Trump’s extreme judges as quickly and quietly as possible. In cases where a nominee did not receive a cloture vote or a senator was not present for the cloture vote, a senator’s vote on the nominee’s confirmation is used instead.
- Senators are further penalized for voting to advance Trump’s most extreme and significant nominees––those to the Supreme Court (Neil Gorsuch and Brett Kavanaugh) and those who appear on his shortlist of candidates to fill potential Supreme Court vacancies (Amy Coney Barrett, Allison Eid, Britt Grant, Joan Larsen, David Stras, Amul Thapar, and Don Willett). Two Senators (Sens. Jones and Tester) opposed Trump’s Supreme Court nominees while representing states that Trump won by more than 20%, and they are rewarded for their votes.
- Senators are scored on their use of blue slips for circuit court nominees, which signal support for, or opposition to, judicial nominees from a senator’s home state. Senators are penalized for returning a positive blue slip for a Trump circuit court nominee, signaling their support for the nominee and smoothing his/her pathway to confirmation (Mark Bennett; Stephanos Bibas; Joel Carson; Allison Eid; Joan Larsen; Michael Scudder, Jr.; Amy St. Eve; David Stras; and Richard Sullivan).
- Senators are further penalized for returning a positive blue for Trump’s most extreme and significant circuit court nominees––those who appear on his shortlist of candidates to fill potential Supreme Court vacancies (Allison Eid, Joan Larsen, David Stras).
- Senators are scored on the 30 Trump district court nominees who received roll-call votes. The vote scored is the motion to invoke cloture (end debate) on each nomination, but in cases where a nominee did not receive a cloture vote, a senator’s vote on the nominee’s confirmation is used instead. Senators are penalized for voting to advance at least 60% of these district court judges and further penalized for voting to advance at least 70%. Only one senator voted to advance fewer than 40% of Trump’s district court judges (Sen. Mazie Hirono, 13%), and she was rewarded for her record on this point.