Reviewed Work: “Trump is Capturing the Judiciary at an Alarming Rate”

Author: Shira Scheindlin

Reviewer: Anthony Marcum

In an April op-ed for the Guardian, retired federal district judge Shira Scheindlin laments that “Trump judges […] as a general matter,” oppose a myriad of desirable public policies and are linked to a political party intent on reversing “a hundred years” of social progress. Moreover, due to the growing number of these judges joining the bench, she warns that Americans will soon be unable to “find comfort in the federal courts.” 

In short, she argues that this is because Trump’s judicial appointments are uniquely unqualified and their swift confirmations will lead to a complete overhaul of good public policies. She also notes that Trump’s nominees now account for over 20 percent of all federal appellate judges and continues on to claim that these judges have “shown that they can be counted on to advance the president’s agenda.” In support of such a claim, she notes one judge’s comment against the “moral tragedy of abortion” and the Sixth Circuit’s recent en banc decision concerning a law that bars state funds to Planned Parenthood.

According to Judge Scheindlin, the trouble with these nominees’ blind loyalty to the president is only surpassed by their heterodox beliefs. As an example, she charges one Ninth Circuit nominee of “espous[ing] harmful stereotypes about sexual violence” and “offensive views about the LGBTQ community.” She claims another Ninth Circuit nominee “fought to undermine civil liberties, weaken women’s rights, and has opposed criminal justice reform.” She also accuses two other nominees—recently confirmed as federal appellate judges—of having “similar beliefs.”

Such broad generalizations are puzzling coming from Judge Scheindlin in particular as, last year, she wrote an article specifically decrying the habit of “attaching political tags to judges.” In it, she cited President Trump’s attacks against “Obama judge[s]” and criticized the media’s tendency to “describe a judge who issues a controversial ruling by the name of the appointing president.” Such a habit, she warned, “cements” the association of politics and the judiciary and she concluded that such “political labeling impugns one of our proudest achievements—a truly independent judiciary.” Since then, however, she appears to have changed her tune, as the more recent piece in the Guardian merely engages in the same partisan impugnation for which she previously faulted the media and politicians.

Perhaps worse, the op-ed also falls into the heuristic trap of blurring law with preferred policy and interchanging judges with rank-and-file legislators. For example, it argues that the dozens of recent judicial nominees, “as a general matter, oppose reproductive rights, gay rights, affirmative action, unions, government regulation, any form of gun control, and immigration.” Beyond the hyperbole, the claim supposes that judges—not legislators—will determine the direction of such policies. Further, coming from a former federal judge, such statements do little to remind the public that judges “are members of the only non-political branch of government.”

Aside from this, the op-ed also distorts several aspects of the Senate confirmation process. For example, it presumes that all nominees have passed a sort of judicial litmus test, but fails to consider that many nominations are the result of careful negotiations between the White House and home-state senators. Just recently, for example, both Sens. Jack Reed and Sheldon Whitehouse praised the administration for nominating a “consensus nominee” for a federal district court seat in Rhode Island. (President Obama previously tapped the same nominee for the same role.)

Moreover, Judge Scheindlin also distorts the historical relevance of the blue slip, claiming that before now, if a nominee did not receive support from a home-state senator—in the form a positive blue slip—a judicial nomination would not proceed. That is not the case. Indeed, history is replete with examples of nominations proceeding without one. Further, the blue slip tradition was never a tool to secure “mainstream” nominees, as Judge Scheindlin suggests. It is, instead, “an informal tradition and courtesy to the senators of a judicial nominee’s home state.”

For all its faults, it must be noted that the op-ed does fairly identify the lack of diversity among current nominees. As Judge Scheindlin observes, “of the 92 judges confirmed to date, only 1 percent are African American, and only 25 percent are women.” The courts would certainly be better served with greater diversity on the bench, including nominees with broader legal experiences, such as public defenders and lawyers with state government experience.

It is true that judges—and their decisions—should not be free from critique. But Judge Scheindlin’s op-ed is indicative of a troubling trend: the presentation of legal differences as sinister partisan politics. Such cynicism fails to appreciate the complexities of legal decision-making and, more importantly, suggests that our independent judiciary isn’t worth protecting after all.