January 27, 2018

Justice Speeding to the Right

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President Trump’s campaign to move the courts to the right is in full force, despite Democratic objections.

By Joseph P. Williams / 01.12.2018

Howard Nielson Jr. is a former Justice Department lawyer in the Bush administration who helped lead an infamous purge of left-leaning job candidates at the Justice Department – a power move considered so heinous that an inspector general’s report recommended those involved should never work in government again.

Thomas Farr spent much of his early career as a campaign attorney for the late Sen. Jesse Helms, the legendary North Carolina Republican and villain to a generation of civil rights advocates. While he was largely behind the scenes, the activists say, Farr was one of the architects of Helms’ plots to suppress black turnout, allowing the senator and former segregationist DIxiecrat to maintain an iron grip on power for more than three decades.

Yet despite liberal outrage about their career paths – and Democrats’ attempts to make them the poster boys for highly ideological nominees the White House is racing to get on the court – experts say Senate Republicans voting in lockstep are likely to confirm both Nielsen and Farr to lifetime appointments as federal court judges.

Put another way: President Donald Trump’s campaign to steer the federal bench to the far right, which conservatives say are among the handful of the president’s first-year accomplishments, is continuing with all deliberate speed. And minority Democrats, stripped of nearly all legislative tools to affect the process, can barely slow it down, much less stop it.

Senate Majority Leader Mitch McConnell, however, doesn’t think the judicial confirmations are happening fast enough – even though several candidates the White House pushed through the vetting and nomination process last year were forced to withdraw under embarrassing circumstances.

“Why must [nominees] consume a week of the Senate’s attention? Why do we need to file cloture on each, and then exhaust the full thirty hours of debate?” McConnell asked in a statement released Monday. “Because Senate Democrats are choosing – for partisan reasons – to make these nominations take as long as possible.”

But analysts say the demand to accelerate a confirmation process that’s moving far faster than when former President Barack Obama was in office – along with nominees from the far right whose backgrounds have been given a once-over instead of a thorough scrub – could be a bad combination for Trump and his top legislative ally.

“Speeding up confirmations raises the risk of unforeseen or troubling areas,” says Jonathan Turley, a George Washington University constitutional law professor and political analyst. “Much of the problem we saw last year was the result of poor vetting and preparation of nominees. That is not as much a matter of the Senate schedule” as much as subpar work by the White House and the GOP.

Meanwhile, along with slowing down the nominations as much as possible, Democrats and their progressive allies plan to highlight Trump’s “worrisome” nominees in the upcoming 2018 midterm elections – what some say is the motivation behind McConnell’s push for faster confirmations ahead of what’s likely to be a Democratic tsunami.

“Every Republican will be held accountable for their vote,” says Nan Aron, president of Alliance for Justice, a progressive organization specializing in the courts and legal issues. “There are Republican lawyers who would be great judges, but this administration is looking exclusively for individuals who will turn the clock back” on women’s rights, civil rights and protections for gays and lesbians.

“They have a commitment to identifying and recruiting judges who are hostile to the progress America has made in so many areas,” says Aron. “And in doing so, they’re sacrificing quality for ideology.”

Aron and others point to Neilson and Farr as Exhibits A and B.

Neilson “played a role in the Justice Department’s notorious political hiring scandal under the George W. Bush administration,” in which the Justice Department screened intern applicants for political affiliation and rejected any candidates who leaned to the left – no matter how sterling their qualifications, according to a letter to the committee from Marge Baker, president of People for the American Way. That discrimination, she says, not only broke federal guidelines but “is toxic to democracy, especially when carried out by the nation’s primary law enforcement agency.”

That sentiment was echoed in the inspector general’s report of the incident, according to Baker, who quoted the analysis: “The ones who are no longer with the Department should never get a job with the Department or, in my view, any other Federal agency based upon the conduct listed, and I hope – and they should consider this action.”

The left is also outraged by Nielson’s work with National Rifle Association as well as his involvement in writing the so-called Bush torture memos, in which the White House Office of Legal Counsel justified the use of waterboarding and other forms of abuse against terrorism suspects, in violation of the Geneva Convention. But the biggest strike against him, according to liberals, is his work fighting gay marriage in California.

“Like nearly one-third of the judicial nominees that have been put forward by this administration, Mr. Nielsen has a long history of working to strip LGBT people of their legal protections,” according to a letter Lambda Legal, a gay and lesbian civil rights group, sent to the Judiciary Committee.

When a federal judge struck down the ban on gay marriage as a form of discrimination, “Mr. Nielson filed a motion asking to vacate the ruling,” arguing that “the presiding judge, Judge Vaughn Walker – a Reagan appointee who was randomly assigned the case – did not reveal that he was in a long-term same-sex relationship, and that because he was in such a relationship,” according to thge letter. Nielson “[assumed] he must have an interest (namely, an intention to marry) that could be substantially affected by the outcome of the proceeding.”

During Nielson’s confirmation hearing Wednesday, Nielson rejected the allegation that he’s biased against gays and lesbians. “The views I express in litigation are those of my clients,” he told the committee. “No one needs to recuse themselves because of their status.”

Similarly, when Far was nominated, Rev. William Barber – an influential civil rights leader and lifelong North Carolina resident – objected strongly because of the nominee’s affiliation with Helms, a longtime senator with deeply-held conservative views. Barber called Farr a “protege” of Helms who, fresh from law school, eagerly adopted the role of suppressing the African-American electorate, a Helms tactic

Along with a race-baiting TV ad in the 1990 campaign, Helms allegedly mailed “more than 100,000 intimidating postcards to North Carolinians, most of whom were blacks eligible to vote, wrongly suggesting they were ineligible and warning that they could be prosecuted for fraud if they tried to cast ballots,” Barber wrote in a New York Times editorial late last month. Although Farr denied it in his confirmation hearings in October, Barber notes that Farr worked for Helms’ campaign during that time period and was affiliated with the law firm that represented the senator for years.

“Having lived in North Carolina since childhood, I know Mr. Helms’ racist legacy and I hold no doubts that Mr. Farr perpetuates it,” Barber wrote. “He began his career as counsel for Mr. Helms’s Senate campaigns, where he participated in racist tactics to intimidate African-American voters. This alone is reason to reject his nomination, as is his apparent lying on the topic to the Senate Judiciary Committee.”

Farr has disavowed the allegations, but committee Democrats want him to testify again before the confirmation vote to clear up the matter.

Ultimately, Aron says, Democrats don’t have the votes to keep Farr or Nielson from the bench, and McConnell and the White House show no intentions of forcing either of them to withdraw. But they are likely to put up a much stronger fight now that Democratic Sens. Corey Booker of New Jersey and Kamala Harris of California are on the panel.

Democrats rearranged their lineup following the surprise win of Sen. Doug Jones of Alabama in a December special election, and when Sen. Al Franken, of Minnesota retired in January amid a sexual misconduct scandal.

The additions “will produce some different outcomes and enhance the conversation and questioning. And that’s a big change,” Aron says.

But Turley, the George Washington University professor, says the politically bloody, hand-to-hand combat over judicial nominations is likely to continue until the White House, Democrats and Republicans agree on baseline qualifications and check political ideology at the door — a longshot at best.

“They need to look very closely at the quality control aspect of this process,” Turley says. “I think that the federal bench for the most part has maintained a very talented array of judges. Despite the flaws in our system we actually have produced a fairly good bench. But it’s clear the process favors the well-connected.”

Originally published by U.S. News & World Report with permission.