Thur – 2/7: Trump is tired of being stopped by judges. So he’s destroying our courts, one nominee at a time. CALL!

Action: Call against these judicial nominees!  

Today, 40 terrible nominees who do not represent the values of the majority of Americans, will begin to creep through the Judiciary Committee like a slow-growing cancer.  You may think this issue doesn’t concern you because they don’t represent your area. Think indivisible, people! It’s within these horrors that Trump will be looking for his next Kavanaugh. We are all connected! CALL!

Minimal script: I’m calling from [zip code] and I want Sen. [___] to know that she/he has my support to stop, in any way possible, this assembly line of inappropriate judicial nominees and the assault on the blue slip process and time periods for examining nominees.

More script if you want it (or email): All nominees with Federalist Society membership need to be opposed, but please concentrate on stopping the following: Chad Readler, Eric Murphy, Allison Rushing, Stephen Clark, Eric Miller, Daniel Collins, Kenneth Lee, and Daniel Bress.

Judiciary Committee members are here. We Californians have the privilege of calling both Senators Feinstein and Harris! Do it. Remind them that we’re watching and thank them for their objections to the picks for our 9th Circuit Court.

If your senators aren’t on the committee, call them anyway. If a nominee gets through to the Senate floor, we want our legislators to know that these people are inappropriate guardians of our courts for the 21st century. Bad press can sink their ships, so call often!

Contact
Senator Feinstein: email, DC (202) 224-3841, LA (310) 914-7300, SF (415) 393-0707, SD (619) 231-9712, Fresno (559) 485-7430
and Senator Harris: email, DC (202) 224-3553, LA (213) 894-5000, SAC (916) 448-2787, Fresno (559) 497-5109, SF (415) 355-9041, SD (619) 239-3884Who is my representative/senator?: https://whoismyrepresentative.com

Chad Readler. He’s currently in the DOJ, attacking the Affordable Care Act, including protection for people with preexisting conditions, and he’s defended Trump’s policy of separating migrant children from their parents at the border. He has tried to undermine public education in Ohio; supported Betsy DeVos’  protection of fraudulent for-profit schools; fought for voter suppression for persons of color; advanced the administration’s anti-LGBTQ and anti-reproductive rights agenda; fought to allow tobacco companies to advertise to children, including outside day care centers; sought to undermine the independence of the Consumer Financial Protection Bureau; and advocated for executing minors. Readler’s own Senator, Sherrod Brown (D-OH), opposes his nomination for a lifetime federal appeals court judgeship, one step below the Supreme Court. Although we can’t stop him from being a member of the Federalist Society, Readler should never be a judge.

Eric Murphy. As State Solicitor of Ohio, Murphy has worked to disenfranchise voters, has argued against marriage equality in the landmark Obergefell v. Hodges, 135 S. Ct. 2584 (2015), case, has attacked reproductive rights, and has repeatedly sided with special interests over all Americans. Murphy’s record demonstrates a narrow-minded elitism that raises serious concerns that he will undermine critical rights and legal protections. His own senator, Sherrod Brown (D-OH) opposes Murphy‘s confirmation, explaining, “I cannot support nominees who have actively worked to strip Ohioans of their rights. Special interests already have armies of lobbyists and lawyers on their side, they don’t need judges in their pockets.” Federalist Society member.

Allison Jones Rushing. An under-qualified religious right extremist nominated to the federal appeals court, she presents a clear and present danger to women and the LGBTQ community. Rushing has worked for an advocacy group that supports criminalization of abortion, recriminalization of homosexuality, & discrimination against the LGBTQ community based on religious beliefs. The “Alliance Defending Freedom” a SPLC hate group, also is hostile to church/state separation, and has advocated for organized Christian prayer–specifically Christian prayer–in government and public school settings. Rushing is on the record as favoring heterosexual-only marriage laws. Here’s a letter from the Leadership Conference detailing why she such is a dangerous and inappropriate nominee. Federalist Society member.

Stephen R. Clark is a religious right advocate against a woman’s right to choose, contraceptives, and same-sex marriage. As an attorney Clark counseled right-to-life groups on how to obstruct abortion providers. He once wrote a legal brief that said using contraceptives leads to “increased risk-taking and sexual behavior,” an unproven theory that has been debunked. He has no business taking up room in a lifetime appointment on a Federal bench. Federalist Society member.

 Eric D. Miller  Miller’s nomination is strongly opposed by both national organizations and local tribes, as a result of his career spent fighting tribal interests and tribal sovereignty. Neither home state senator supports his nomination. In private practice, Miller has frequently represented powerful corporations fighting the interests of consumers and employees. At the Justice Department, his work as a career attorney included several controversial national security and reproductive rights cases. Miller’s personal comments and writings also raise questions about whether he understands the impact of the law on real people, or simply prefers that the law protect the wealthy few. And like many Trump nominees, Miller is a member of and speaker at the extremely conservative Federalist Society.

These are the three Trump picks for our California 9th circuit court.

Daniel P. Collins, a former associate deputy U.S. attorney general who now is in private practice defending the oil industry in high-profile climate and environmental cases, including the current crop of climate liability lawsuits. One of his clients Royal Dutch Shell, is among the companies being sued by a group of California communities trying to hold oil companies accountable for climate change-related damages. Certain aspects of those lawsuits are already being appealed to the Ninth Circuit, which covers California, the Pacific Northwest as well as Alaska and Hawaii. He has already gotten a thumbs-down from Senators Feinstein and Harris.
“We also told the White House that we could not support Daniel Collins because concerns about his temperament and rigidity were raised during his vetting. In particular, we were told that Mr. Collins has a history of taking strong litigation positions for no reason other than attempting to overturn precedent and push legal boundaries. This should be a concern to all senators—it should not be a partisan issue. Consistency and stability are vital in the law.”

He is  a member of the Federalist Society.

Kenneth Kiyul Lee, is a first generation South Korean immigrant and a former associate counsel to President George W. Bush, now in private practice.  In college, he wrote that Asian Americans were “caught between” affirmative action “policies that limit their admission to select colleges and opportunistic conservatives” trying to “woo the Angry Yellow Male vote.” After law school, the nominee advised Republicans to “appropriate the language and logic of liberals’ most sacred shibboleth: affirmative action,” in order to obtain better representation of Republicans and Christian conservatives at universities. He has also written in favor of denying felons voting rights and has critiqued U.S. immigration policy.  He apparently tried to hide his more controversial writings from the selection committee. Big mistake, Ken! Sen. Dianne Feinstein and Harris went on record to state:
“We made clear to the White House that we could not support Kenneth Lee in this package, in part because he failed to turn over controversial writings to our judicial selection committees, which is an important part of the vetting process. Instead, the writings were later discovered by staff and press.

“In addition, the writings themselves outlined extreme views on a number of important issues like affirmative action and voting rights. This has been disqualifying for previous nominees, including Ryan Bounds to the Ninth Circuit.

He is a contributing writer to the Federalist Society.

Daniel A. Bress is having problems right out of the chute. Senators Feinstein and Harris have gone on record to say:

“Finally, we raised concerns about Daniel Bress since he lives in Washington, D.C., not California, is quite young and has no judicial experience.

“Chairman Graham has said he wants to protect senators’ role in the nominations process. Historically, the greatest protection for home-state senators has been the blue-slip tradition. When he was chairman of the committee, Senator Leahy ensured that no nominee had a hearing unless Republican senators returned their blue slips. We hope Chairman Graham will honor the same standards Republicans were afforded when a Democratic president held the White House.

“We’ve shown that we’re willing to work with the White House, agreeing to candidates from its list and negotiating a deal on district courts—the same should be done for the Ninth Circuit.”

According to his law firm bio, Bress represents clients in “complex litigation matters involving class actions, government fraud, commercial disputes, products liability, securities fraud, and employee benefits’ for clients like Honeywell, United Technologies Corporation, BASF, Boeing, Raytheon and Wyndham. Prior to joining his law firm, he served as a law clerk to Justice Antonin Scalia of the Supreme Court of the United States and Judge J. Harvie Wilkinson III of the United States Court of Appeals for the Fourth Circuit. He is also a member of the Federalist Society.

Background

Anytime Trump is stopped from doing something truly horrid, it’s most likely because a judge stopped him. In response, with the help of the his right-wing Federalist Society advisors, are working on destroying this braking mechanism.

Not just for himself, but for the next generation of corrupt politicians , racists, homophobes, xenophobes, misogynists, anti-environmentalists, anti-worker corporations, forced-birthers and all the other dark forces he’s pulling from our nightmare attic. You will note that there are no older people in their selections. They want their influence to last for decades.

Donald Trump, Mitch McConnell and Chuck Grassley (former Chairman of the Senate Judiciary Committee) spent most of 2017 filling the 5th Circuit Court with far right wing extremist judges, all hand-chosen by the alt-right Federalist Society. Remember this guy?

Yeah, we called on him…and his friends. Judge James C. Ho,  Judge Stuart Kyle Duncan, Judge Kurt D. Engelhardt, Judge Andrew S. Oldham. None of these people deserved to be called judge, but now they’re in power. As a result, all the states in the 5th circuit are essentially a lost cause for the next 20-30 years in terms of enviro rights, LGBTQ rights, repro rights, voting rights, workers’ rights, etc. Serious damage was also done to the 8th Circuit Court as well. Trump and McConnell are now gunning for the 6th Circuit Court, with the 9th – currently the most progressive Court that includes California – also under attack.

Who is this Federalist Society that keeps recommending these horrible people to Trump anyway?

One simple truth is that the Constitution did not come with an instruction manual defining the ONLY CORRECT way to deal with constantly changing societal values and language. That the president must be 35 years old remains clear. The exact meaning of words like “right,” “unreasonable,” “probable cause,” “due process,” “excessive,” “cruel and unusual” and “equal protection” constantly evolves.

How judges interpret tricky Constitutional issues depends on their political bent and societal prejudices. Like the Bible, the source both of pro-slavery arguments and the civil rights movement, Constitutional-lite arguments can be made for most positions with enough carefully cherry-picked phrases and historical references.

The Federalist Society believes that their libertarian-fueled “Originalist” methodology, a backwardly focused attempts to read the minds of the original framers of the Constitution, is the only correct pathway. This nonsense is critically debunked in 1939 by Professor Jacobus tenBroek of UC Berkeley. He described their position here: ” 1) judges should “abandon” contemporary perspectives in deference to the “vantage point” of the people living when the Constitution was adopted; (slave holders? white male property holders?) and 2) the original meaning of the Constitution does not change“(Vox). More recently, Gorsuch has stated “Judges should … strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.”

Who says?

This is the same paternalistic “father knew best” framing that drives all of conservative politics. But the “fathers” have been dead for a long time and we, their children, have realized they left out a lot of important issues, like universal suffrage, racial and gender equality. Some of these oversights were fixed through the amendment process and some with laws, processes deliberately left by the framers for growth and corrections.

That there have been large revisions to the original constitution does not pose an obstacle for the ideologues of the Originalist movement, which included Supreme Court Justices Robert Bork and  Antonin Scalia, and now Gorsuch, Thomas and Kavanaugh. They decide what ruling they want based on the their own anti-government agenda of the Libertarian party or the anti-everybody-else litany of the current GOP, and then engage in their favorite creative writing game – “What would James Madison have done?” to justify it for posterity.

(As a side note, the 14th amendment is a particular itch with them, with it’s early manifestation in the “separate but equal” Plessy v. Ferguson (1896) and its later transformation through the Jim Crow rebuke of Brown v. Board of Education (1954), as they continue to argue themselves out of self-imposed boxes.)

Are these nominees a danger to us?

As of January 2019, 25 out of 30 of President Trump’s appellate court nominees were current or former members of the society. Not a surprise as they are chosen by Leonard Leo, the society’s executive vice president and right-wing extremist. Per Wikipedia “Federalist Society members have generally chosen not to criticize President Donald Trump …on his breaches of long-cherished legal norms and traditions in exchange for the gift of Supreme Court Justice Neil Gorsuch…. In May 2018, the Federalist Society hosted a phone call entitled “examining the legality of the Mueller Investigation”, where one of the featured speakers has argued that Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election is unconstitutional.”

“What they have in common is an exceptional hostility to the progress that’s been made in this country since the New Deal, whether that’s to workers, civil rights litigants, women, consumers or people who care about the environment,” Aron said. “Nominees being confirmed by the Republican Senate today would have been deemed unqualified even under President George W. Bush because of their extremism.”

From the Nation: “Federalist arguments include: Sexual-harassment and gender-equality laws impose illegitimate burdens on business; the powers of the Environmental Protection Agency should be exercised by the free market or, at most, by local or state government; juries are too unpredictable to be given the power to award punitive damages against large corporations but legitimate enough to be empowered to impose the death penalty; welfare laws by and large should be repealed; hate crimes are not a separate and more reprehensible category of criminal behavior than crimes not motivated by animus toward people of different races or sexual orientation; and the right of the people to keep and bear arms means empowering individuals to take up arms, not just preserving organized state-based militias.”

Here are some of their “gifts” to us so far.

• They have argued that courts should not take race into account when making decisions. They believe that there is no legal difference between considering race or gender for purposes of exclusion and considering race or gender for purposes of inclusion. They argue that both are harmful and make racial problems worse.
• They have forcefully argued against regulations on guns and they have been influential in shifting legal views on gun rights to the extreme.
• They influenced on the Citizens United Supreme Court ruling which corrupted  regulations on campaign finance.

For those of us who believe our founding fathers trusted us with the car keys, believe that “true originalism — genuinely following the founders’ intent — requires us moderns to interpret constitutional language in light of our own, not their, moral and linguistic norms.”

Fight against each and every one of these nominees.

Deeper dives

• The problems with Originalism (NYT)
• Judicial Originalism as myth (vox)
• Movin’ on Up with the Federalist Society (Nation)
• Why Supreme Court “Originalists” are wrong about the Constitution. (USNews)
• Constitution Myth #1: The Right is “Originalist” – Everybody else is “idiotic” (atlantic)
• The Federalist Society will soon have a 5-4 stranglehold on the Supreme Court (Slate)
• The Federalist Society’s threat to Feminism and the Supreme Court (MS)
• Use by the US Supreme Court of Extrinsic Aids in Constitutional Construction (scholarship.law.berkeley)