Even if Joe Biden wins, Trump and Mitch McConnell’s judges could block U.S. progress for decades | Will Bunch

When a precocious twentysomething named William Stickman IV wrote letters to the Pittsburgh Post-Gazette in the early 2000s attacking the "leftist sharks' angered by then-Sen. Rick Santorum’s equating of homosexuality to incest and accusing the paper of anti-Catholic bias in its coverage of priest abuse scandals, the youth wasn’t just showing off. Stickman was arguably showing he had what it takes to be a part of a future surge in young white male right-wing federal judges under President Trump and Senate Majority Leader Mitch McConnell.

Less than 14 months after Stickman — now 41, who’d been a Pittsburgh attorney and GOP activist — won a lifetime appointment as a federal district judge in western Pennsylvania in a mostly party-line Senate vote, the young jurist showed both the state and America exactly how Trump and McConnell’s extreme makeover of the federal judiciary could determine the fate of U.S. democracy for decades, even if voters reject Trump in November.

On Monday, Stickman stunned many legal scholars in siding with Republican lawmakers and GOP-led counties in striking down Gov. Wolf’s strict spring lockdown orders over the coronavirus as unconstitutional, even as some health experts have hailed for saving thousands of Pennsylvania lives as the pandemic ravaged neighboring states. The judge opined that a “solution to a national crisis can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the American experiment.”

Never mind that constitutional experts found the legal foundation for Stickman’s ruling more than a little shaky. The ruling relied heavily on a much-maligned 115-year-old pro-business ruling that’s been largely undercut and arguably overturned over the last century, and even leaned on a dissent (i.e., a losing argument) by conservative Supreme Court Justice Samuel Alito. The judge (who, for what it’s worth, during his confirmation said his 2003 Santorum letter was “inarticulate” and no longer stands by it) amplified a key pro-Trump talking point on the pandemic in Pennsylvania, the state that may be the decider in the 2020 race.

And perhaps more importantly, Stickman’s controversial ruling also offered an early and arguably frightening window into how more than 200 conservative federal judges confirmed during Trump’s term — nearly 70% of them white men, many in their 30s or early 40s — could rule deep into the 21st century on issues such as climate change, workers' rights, expanded government health care, and women’s reproductive rights.

Indeed, with the polls currently predicting that Trump would lose to Democrat Joe Biden, McConnell’s GOP-led Senate has been racing as fast as it can to install even more right-wing judges. It confirmed six more Trump nominations on Tuesday and Wednesday, even as senators fail to act on more pressing matters such as extending federal relief for millions of jobless Americans, or bailing out the U.S. Postal Service before an election in which many will vote by mail.

What’s more, Trump and McConnell’s judicial makeover — including 53 new appellate judges, none of them Black, with only one Latinx — could lead to rulings on voting issues between now and November that could help the president win a second term, during which he’d have a chance to name scores of additional jurists. Arguably that’s already happened in Florida, where Trump and George W. Bush appointees on the 11th Circuit provided all of the votes for a 6-4 ruling uphold a state law to make former felons pay court costs before casting a 2020 ballot, which will impact hundreds of thousands of would-be votes in a Trump-Biden toss-up state.

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All of this raises two big questions for Democrats. The first is political: With the election little more than six weeks away, why isn’t the Biden campaign making a bigger deal over the issue of naming new judges — especially the highest-profile example that a second term might give Trump a chance to replace two aging liberal justices on the Supreme Court, including 87-year-old Justice Ruth Bader Ginsburg?

The second revolves around policy and is a lot more complicated. If Biden and the Democrats can retake both the White House and the Senate in November, are there any moves they can make to somehow counteract the influence of the Trumpian judicial surge, to prevent a situation where the will of voters in a younger and possibly more progressive electorate is routinely blocked from the bench by conservatives, even into the 2050s and ’60s.

The issue has been simmering below the surface for the last year. During the Democratic primaries, candidate Pete Buttigieg caused a stir with a proposal to expand the number of seats on the Supreme Court from the current nine to 15 chosen in a new bipartisan system — an idea to appeal to liberal voters who rightly feel that McConnell stole a High Court pick from Barack Obama in 2016 and still seethe over the 2018 confirmation of Justice Brett Kavanaugh.

But while the number of justices isn’t fixed in the Constitution and has in fact changed over the years, the idea is a highly loaded one politically — then-popular President Franklin Roosevelt failed in spectacular fashion when he tried this, for similar reasons, in the 1930s — and unlikely to succeed. Ditto the notion of term limits for Supreme Court justices, which would require a constitutional amendment that makes it seemingly a non-starter.

Also, those ideas do nothing about the increasingly dense thicket of right-wing justices such as Stickman in the district and appellate courts. Here, the Democrats have an option for 2021 and beyond that’s received virtually no campaign attention but could have a huge impact on future policy: A long-overdue expansion of these lower courts.

Throughout U.S. history, the number of federal judgeships had steadily increased to keep up with both a growing population and a higher caseload, but that process has ground to halt since 1990, as partisan gridlock began to take deeper root in Washington. The progressive group Demand Justice has backed expansion of the lower courts by at least 70 new district judges — that’s in line with a bipartisan proposal by Bush-appointed Chief Justice John Roberts — and possibly by more. In a recent op-ed, Demand Justice co-founders Brian Fallon and Christopher Kang noted that a similar expansion in the late 1970s allowed Jimmy Carter to name a large number of non-white and women to a judiciary that had been the province of white men for 200 years.

“This 30-year drought has been our longest period of time without comprehensive lower court expansion, which is necessary for good government,” Kang — a former top White House attorney under Obama — told me. "The ability of our courts to effectively administer justice requires more judges.” The group has also called for Democrats to promote broader diversity if Biden and Democratic senators have to opportunity to confirm new judges — not just around race and gender but also through more nominees with a social-justice background and fewer from the corporate world.

Biden, for his part, has promised to name the first-ever Black woman to the Supreme Court if presented that opportunity. That would be a powerful and long-overdue move, and yet the possibility of replacing a Ginsburg — already the court’s most powerful liberal voice — with a progressive from a more diverse background won’t address the deeper threat of ideological gridlock as Trump’s 200-plus judges thwart Democratic legislation.

In today’s warped political atmosphere, a Democratic push for what once would have been a routine bill to expand the lower courts would surely be greeted with howls of “partisan power grab!” from the far-right punditocracy — that same voices that were silent when McConnell went to unprecedented lengths to deny even a public hearing to a Supreme Court nominee (Merrick Garland) by America’s first Black president. The often-cowed Democrats need to summon the courage to fight for this reform — as the very minimum.

That’s assuming the party can win this fall — an effort that might be helped if they remind voters of the stakes around who’ll be picking our judges between now and 2025, when it may be too late to save American democracy if Trump and Constitution-shredding Attorney General William Barr get those four more years. Judge Stickman’s legally unhinged ruling on Pennsylvania’s COVID-19 restrictions may or may not have a huge impact on the future of the pandemic, but it should be a dire warning for the future of America.

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