Trump-y GOP judges will destroy America without radical court changes

When Aileen Cannon — a then-39-year-old junior prosecutor with a resumé that could be charitably called flimsy — appeared before U.S. senators for her summer 2020 confirmation hearing to become a federal district court judge, she also had very little experience giving interviews.

We know this from the questionnaire that Cannon — a Colombia native whose family later escaped Fidel Castro’s Cuba for Florida — filled out for the Senate Judiciary after she was recommended for the lifetime appointment by Sen. Marco Rubio and nominated by Donald Trump. She acknowledged her only media interview had been a 2009 appearance on the wedding site The Knot — “Aileen and Josh: A Traditional Wedding in Coconut Grove” — in which the couple described how the groom’s wedding proposal during a vacation in Greece had been interrupted by a turtle.

» READ MORE: Chief Justice John Roberts defends legitimacy of court

Cannon’s somewhat stunning lack of experience or public exposure was highlighted on Twitter by GOP defector and Stand for Democracy founder Peter Vroom, who also noted that “she had never made any speeches, produced any reports, participated in any panel discussions, spoke at any conferences or written for any bar association.” The would-be judge’s writing experience was largely limited to a college internship at the El Nuevo Herald newspaper in Miami, where she covered prenatal yoga and flamenco dancing.

Yet Cannon had two huge things going for her in the eyes of Trump, Rubio, and the right-wing project to remake the federal judiciary: She was a product of their conservative grooming project, the Federalist Society, and her relative youth meant she might sit on the bench for decades. She was one of several judicial nominees rammed through the Senate on Nov. 12, 2020 — five days after TV networks called the election for President Biden, signaling that the right-wing judicial pipeline was about to get shut down.

Trump seems to have remembered Cannon when he moved to Florida two months later — a private citizen after his failed coup. He even filed his bizarre “Russiagate” lawsuit against Hillary Clinton and a former FBI agent in Fort Pierce, Fla. — when Cannon was the only district judge — in the apparent hope she would oversee the case. (She didn’t, and the judge who got it instead threw the suit out as “a political manifesto” with no legal basis.)

But Team Trump did get Judge Cannon for a much more important case — the ongoing probe into top-secret documents that belong to the federal government but were taken by Trump to his Mar-a-Lago club in the Sunshine State. Legal experts seem almost unanimous in their view that a request by Trump’s lawyers for a special master to review the papers seized by the FBI from Mar-a-Lago was a legally ridiculous stall tactic. A tactic, they added, with dangerous implications for both national security and the shaky notion that even an ex-president is not above the law.

» READ MORE: The Supreme Court has a giant legitimacy crisis, which means so does America | Will Bunch

The Trump-appointed judge saw things differently, ruling in favor of the FPOTUS and throwing a monkey wrench into the Justice Department probe into the mishandling of classified documents that reportedly include sensitive nuclear secrets. “This would seem to me to be a genuinely unprecedented decision by a judge,” said Paul Rosenzweig, a former Homeland Security official in the George W. Bush administration, one of many lawyers who ripped the ruling and what its radical notion of “executive privilege” to shield documents holds for an ex-president.

Although it’s not clear what might happen on appeal, Cannon’s ruling is hugely important on several levels. It certainly raises the stakes on the question of whether Trump — facing multiple probes not just over missing documents but his involvement with the Jan. 6 insurrection and possible election tampering — can be brought to justice in a system where scores of jurists, including three on the Supreme Court, rose from his political movement.

But more broadly, Cannon and her hard-to-justify ruling felt like a tipping point for a much more serious problem for American democracy: that a Republican project to pack the federal bench with young justices with an extreme right philosophy has succeeded to the point of also thwarting the popular will of the U.S. electorate on important issues such as protecting abortion rights and the environment, with other fundamental civil rights now under threat.

At roughly the same time that Cannon was ruling on behalf of the ex-president who appointed her, a Republican federal judge in Texas issued a decision that threatened to seriously undermine Obamacare health coverage — by allowing Christian employers to claim that paying for preventive care around HIV infections would violate their religious freedom.

Health-care experts said the ruling by U.S. District Judge Reed O’Connor threatens other preventive and potentially life-saving aspects of the popular Affordable Care Act, such as cancer screenings. The radical ruling by Wichita Falls-based O’Connor wasn’t exactly new. In a separate case in 2018, the former Republican Senate aide — (stop me if you’ve heard this before) a member of the Federalist Society, named to the bench by George W. Bush — ruled that all of Obamacare is unconstitutional, only to see that reversed by the high court. The right-wing Texas Attorney General’s Office famously files many of its cases in O’Connor’s district, which has resulted in a range of controversial conservative rulings on issues like transgender rights.

Right-wing social activists and backers of the current Trump-fried crusade against democracy shopping for friendly judges from the hundreds of ultra-conservatives crammed onto the federal bench since Bush 43′s 2000 election is, of course, a mockery of the politically neutral, “just balls and strikes” justice system that Republicans hypocritically claim to support.

But it’s also just the leading edge of a much deeper crisis: a now-entrenched judicial branch of the U.S. government that seems determined to impose a ruling philosophy at odds with a majority of the American people — and which is increasingly willing to overturn precedent and sound legal logic to get there. The headline here was June’s Supreme Court stunning reversal of the 49-year-old Roe vs. Wade precedent guaranteeing abortion rights, a ruling that has alarmed an increasingly less-silent majority that other civil rights like same-sex marriage or even long-settled topics like contraception might fall next.

This amped-up war on your basic rights is no accident, but the direct result of the conservative project led by now-Senate Minority Leader Mitch McConnell and boosted by Trump. Indeed, nearly a third of federal appeals judges, more than a quarter of district judges and of course three of the nine SCOTUS justices were picked by the 45th president, who was impeached twice and is now under felony investigation. McConnell, who famously smashed through the guardrails of democracy to deny a Supreme Court pick for our first Black president in favor of Trump, has called his No. 1 priority to “do everything we can, for as long as we can, to transform the federal judiciary, because everything else we do is transitory.”

And of course Republican presidents and senators are going to pick guys (and it’s mostly white guys, Cannon notwithstanding) who line up with a conservative policy, but people can see the judiciary’s legitimacy crisis is much deeper. Consider, for one example, the Supreme Court’s dramatically increased use of a so-called shadow docket that allows the justices to make politically charged rulings both more quickly and with much less openness.

This was all happening before the bad behavior of an unprecedented early leak of the Dobbs ruling that overturned Roe — most likely from conservatives looking to keep colleagues in line — and revelations that Justice Clarence Thomas’ wife, Ginni, was up to her eyeballs in the plot to overturn Biden’s election, even as her husband continued to rule on related cases.

No wonder that public faith in the Supreme Court has plummeted to a once-unthinkable low of 35% for what was once one of America’s trusted institutions. It’s not just that the court’s recent rulings are so unpopular — support for the abortion rights undone by the high court has risen to 60% — but also because what increasingly looks like failure to hold Trump accountable for high crimes and misdemeanors, up to and including an attempted coup, makes the maxim that nobody is above the law feel like an absurdist joke to most citizens.

A seemingly panicked Chief Justice John Roberts sought to quell the judiciary’s growing legitimacy crisis in a speech Friday in Colorado Springs, in which he said “I don’t understand the connection between the opinions people disagree with and the legitimacy of the Supreme Court.” Roberts seems not to understand what a majority of people see with their own eyes — that respect for the judiciary must be earned, and it is melting away.

The crisis can be solved, but three things need to happen. Let’s look at them in ascending degree of difficulty.

First, Biden and that narrowest possible Democratic majority in Congress need to put their foot on the gas and accelerate their pretty-successful-so-far work in filling the current vacancies on the federal bench, with nominees that reflect both the true diversity of the American people as well as our diversity of thought. But related to that, a serious push must be considered to expand the overworked federal judiciary — something that used to happen more commonly in the less-fraught 20th century — along the lines of proposals to add 70 new district judges, which has drawn support in the past from Republicans as well as the chief justice.

Second, the best immediate protection for civil rights against a rogue judiciary would be for Congress to codify those rights in bulletproof federal legislation. There is a very good chance lawmakers will vote this fall on a measure to enshrine same-sex marriage so that the increasingly anti-privacy Supreme Court can’t overturn its 2015 Obergefell vs. Hodges decision. Democrats must pledge in the November midterms that an expanded Senate majority would do the same for abortion rights, voting rights, environmental safeguards, and other basic rights that might otherwise be stripped by the Trump Court.

Third, and most radically, Democrats must also promise voters that a 2023 majority will stop dilly-dallying and take up the long-overdue measures of both term limits for Supreme Court justices as well as finally expanding the court — which is not fixed in size by the Constitution — to at least 11 and probably 13 justices. Such a move would be assailed as a Biden power grab, but the reality is that it would be a powerful reassertion of democratic rule by the American majority, to undo the legacy of a GOP project to run roughshod over the will of people.

In fact, I can’t think of a better moment to start debating this when the public gaze has been on the transition of the British monarchy — which ought to serve as a reminder of why the American Experiment in rule by the people was launched in the first place. Will we really continue to cede our fundamental human rights over our bodies, or whom we can love, to a gaggle of mostly white men in robes who — like King Charles III — are serving lifetime appointments? Or will we tackle the hard mission of reclaiming democracy, like we did in 1776?

» READ MORE: SIGN UP: The Will Bunch Newsletter