How Trump and the Republicans have transformed justice to seize power

The confirmation this Monday of his third judge in the Supreme Court is the culmination of a strategy by the president and his party to impose their conservative agenda for years through the judges

It was one of the mainstays of the alliance of the Republican Party with Donald Trump They would accept his agenda his ways his strident leadership in exchange for transforming the Judiciary together They would place a battalion of faithful conservative justices chosen by likeminded groups on the federal appeals circuit and on the United States Supreme Court The operation would give them much greater power than a fouryear presidential term

In the last three decades Republicans have only won the popular vote in one presidential election the reelection of Bush Jr in 2004 Few hope that they will get it either in the elections on November 3 But even if the Democrats win the presidency and Congress in addition to the popular vote as the polls predict  the conservatives could neutralize the reforms promoted by the social majority

The judges carefully chosen by Trump have already begun to transform the countrys legal system in a more conservative direction on issues such as immigration climate change abortion electoral rights or gun control moving the spirit of the laws away from the feelings of the majority of Americans

The jackpot is the confirmation of Amy Coney Barrett for Supreme Court Justice which will surely take place this Monday when it is approved by a simple majority by Republicans in the full Senate It is the third judge that President Trump has placed on the Supreme Court in four years A record for a single presidential term
But it is only the tip of the iceberg In just four years Trump has appointed 163 district judges and 53 appellate circuit judges bodies in which the vast majority of federal court cases are resolved

One in three Supreme Court justices and almost the same proportion of the 179 justices of that previous instance have been put there by Trump There are 35 more pending confirmation in the Senate Obama in twice the time in two terms was able to appoint two justices of the Supreme Court and 55 of the appeals circuit

During Trumps tenure the keynote on Capitol Hill has been the lockdown There has hardly been any farreaching legislation and the president has governed under executive orders But the senators have not been idle

They have gone ahead without much noise with their task a priority since at least 2017 of transforming the judiciary Only in the month of September in the middle of a pandemic they have placed a dozen judges

Part of the blame is on the Democrats Traditionally upper house confirmation of appellate judges required a qualified majority of 60 out of 100 senators But in 2013 to get around the obstruction of the Republican minority led by Mitch McConnell they changed the rules so that a simple majority would suffice

In the 2014 legislative elections Republicans retaken the majority in the Senate and blocked Obamas appointments of judges The most notorious thing was his refusal even to consider in 2016 the candidate appointed by the Democratic president to fill a vacancy in the Supreme Court claiming that it should not be done in an election year The elections were ten months away Four years later the Republicans are preparing this Monday to confirm after an express process to a Supreme Court magistrate eight days before the elections

McConnells block was almost total So much so that Obama left 103 vacancies in the federal courts in addition to a vacant Supreme Court seat When the Republicans returned to the White House they used that simple majority of senators introduced by the Democrats to put the nomination machine at full throttle

Two out of every three Trumpappointed judges are white males according to a New York Times studyversus one in three of those appointed by Obama They all share strong conservative credentials At least seven of them have worked in the Trump campaign or in his Administration And all but eight have links with the Federalist Society a very powerful organization of conservative and libertarian jurists that advocates a textual and originalist interpretation of the Constitution whose positions on the main social issues are marginal to those of the country as a whole

We have seen our fringe positions positions that in the past would have limited someones options for consideration for the federal judiciary have become the center of the conversation said a former Trump adviser according to the Times  in a presentation at the societys last annual convention

The meaning that the positions are for life is to shield the political independence of the judges free them from obedience to the party of the president that has appointed them so that they can exercise their role as neutral interpreters of the Constitution and the laws without pressure

The problem is that this is no longer the case The need for a qualified majority forced presidents to look for consensus candidates who could have votes from the rival party but now it is a game in which the party that controls the Senate confirms the judges proposed by its president and blocks the proposed by a rival party president

Electoral argument
Trump has broken many conventions in his presidency and his understanding of the judiciary his uncomplexed politicization of justice is one of them He has often spoken of judges as agents of the president who appointed them he refers to an Obama judge for example and openly uses the appointment of judges as an electoral argument rather than as a constitutional duty of the presidency

He ran for president with the promise of transforming the judiciary with conservative judges Exit polls revealed that for many Republicans the Supreme Court was the most important factor in their vote

Democrats if they come to power will be tempted to follow the same manual Some go further and advocate increasing the number of seats in the Supreme Court and even on the appeals circuit to neutralize the impact of Trumps judges Since 1869 the Supreme Court has been made up of nine magistrates but the number is not in the Constitution so that a new Democratic majority could alter it

It would be a dramatic measure which today does not enjoy the majority support of the citizens but for many it would be the only way to govern for the majority if the conservative judicial wall prevents Democrats from implementing laws that the Republican minority do not like

After dodging the issue for much of the campaign Democratic presidential candidate Joe Biden announced last week that if elected he will establish a bipartisan commission of academics to study different ways to reform the judiciary

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