Rampant judicial activism

Via Slate by Dahlia Lithwick and Mark Joseph Stern:

The Clarence Thomas takeover

But Thomas is more than just the Trump administration’s philosophical hero. His once-fringy ideas are suddenly flourishing—not only on the high court, through his alliance with Gorsuch, but also in the executive branch.

Everywhere you turn in Trumpland, you’ll find a slew of Thomas’ former clerks in high places. They are serving in the White House counsel’s office(Greg Katsas, John Eisenberg, David Morrell); awaiting appointment to the federal judiciary (Allison H. Eid, David Stras); leading the departments of the Treasury (Heath P. Tarbert, Sigal Mandelker) and Transportation (Steven G. Bradbury); defending the travel ban in court (Jeffrey Wall); and heading the White House Office of Information and Regulatory Affairs (Neomi Rao). Thomas clerks are also working with dark money groups to execute Trump’s agenda (Carrie Severino) and boosting him in the far-right media (Laura Ingraham).

At the precise moment in which the more than 120 vacancieson the federal courts may be the only reason for conservatives to hold their noses and stand by Trump, it’s Clarence Thomas who stands as a living embodiment of wars already won and triumphs yet to come.

Via Buzzflash by Mark Karlin:


Under the Radar, Trump Is Packing the Federal Judiciary With Right-Wingers

Over the past few decades, Republicans have demonstrated that they understand the long-term implications of creating an activist federal judiciary and using every trick in the book and sheer power plays to confirm right-wing nominees. Meanwhile, the Democrats appear to generally be content to play by the Senate rules and not put a full-court press on getting Democratic presidential nominees placed on the various levels of the federal bench. In this sense, Gorsuch is just the tip of the pyramid. Progressives are mostly ignoring all the federal judges confirmed by the GOP at other levels — to great peril.

Jeffrey Toobin, legal analyst for The New Yorker, wrote yesterday of the GOP’s high-intensity push to get its federal appointees seated — as compared to the Democratic senators when they are responsible for federal court nominees:

Trump has also benefited from the greater interest that conservatives, as compared with liberals, have shown in federal judicial appointments at all levels. Republicans simply care more than Democrats do about getting their people on to the bench. Illustrating the varying priorities of the two parties, Allan Smith, of Business Insider, compared the first six months of judicial appointments under Obama and Trump. Smith found that, in this period, Trump nominated eighteen people for district-judgeship vacancies, and fourteen for circuit courts and the Court of Federal Claims. During that same period in Obama’s first term, he nominated just four district judges and five appeals-court judges. In total, when U.S. Attorneys are included, Trump nominated fifty-five people, and Obama just twenty-two. Obama’s attention was, undoubtedly, distracted by a global economic implosion in 2009, but his party had a greater majority in the Senate than Trump’s does now, and still Obama failed to push through more than a handful of judges in that period.

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