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Home , Amy Berman Jackson, Contempt of Congress, Frank Bruni, Judicial Crisis Network, Lawrence VanDyke, Neomi Rao

CONTEMPT OF COURTS? PRESIDENT TRUMP’S TRANSFORMATION OF THE JUDICIARY

Brendan Williams*

Faced with a letter from the (ABA) assessing him as “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice,” Lawrence VanDyke, nominated by President Trump to serve on the Ninth Circuit Court of Appeals, cried during an October 2019 confirmation hearing before the Senate Judiciary Committee.1

Republican senators dutifully attacked the ABA as liberally-biased.2 In a Wall Street Journal column, a defender of VanDyke assailed what he called a “smear campaign” and wrote that “[t]he ABA’s aggressive politicization is especially frustrating for someone like me, an active member of the ABA[.]”3 VanDyke was confirmed anyway.4

Contrary to Republican protestations, the ABA has deemed 97% of President Trump’s nominees to be “well qualified” or “qualified.”5 Indeed, in the most polarizing judicial nomination of the Trump Administration, Justice , Kavanaugh’s defenders pointed to the ABA having rated him “well qualified” despite the association having once, in 2006, dropped his rating to “qualified” due to concerns about his temperament.6

*Attorney Brendan Williams is the author of over 30 law review articles, predominantly on civil rights and health care issues. A former Washington Supreme Court judicial clerk, Brendan is a New Hampshire long-term care advocate. This article is dedicated to his father Wayne Williams, admitted to the Washington bar in 1970. 1Hannah Knowles, Trump Judicial Nominee Cries over Scathing Letter from the American Bar Association, WASH. POST (Oct. 30, 2015). 2Id. 3Adam J. White, Another Smear Campaign from the American Bar Association, WALL ST. J., (Oct. 30, 2019.) 4Matthew Daly, Trump Pick for Nevada Seat on Appeals Court Confirmed Despite Cortez Masto, Rosen Protest, RENO GAZETTE J. (Dec. 11, 2019) (“Among those opposing VanDyke were Nevada Democratic Sens. and , who said that despite serving four years as Nevada's solicitor general, VanDyke's qualifications are inadequate and his ties to Nevada ‘minimal.’’). 5Knowles, supra note 1. 6Adam Liptak, Bar Association Questioned Kavanaugh’s Temperament and Honesty in 2006, N.Y. TIMES (Oct. 2, 2018). 2 DENVER LAW REVIEW FORUM [28-Oct-20

Senator (R., S.C.)—Kavanaugh’s most vociferous defender—even used the ABA’s rating to defend Kavanaugh against charges of sexual misconduct: “If you lived a good life, people would recognize it, like the American Bar Association has—the gold standard . . . . He’s the nicest person—the ABA.”7

For those progressives—or advocates of an impartial judiciary— troubled by the direction of President Trump’s judicial nominations, the concern is hardly the accommodating ABA, it is a combination of Democratic haplessness and the effectiveness of conservative, interchangeable organizations such as the Judicial Crisis Network (JCN) and the .

Given President Trump’s landmark success in filling judicial vacancies,8 it is ironic that no recent president has been more contemptuous in his regard for the judiciary—even getting into a war of words with Chief Justice John Roberts about whether there are “Obama judges” and “Trump judges.”9 In one fit of pique, President Trump suggested that Supreme Court Justices Sonia Sotomayor and recuse themselves from cases involving his administration.10 Roberts offered no defense of the two women justices, but, much to Trumps’ delight, Roberts did express public

7Avi Selk, The American Bar Association Had Concerns about Kavanaugh 12 Years Ago. Republicans Dismissed Those, Too., WASH. POST (Sept. 28, 2018). The irony of Graham’s reliance upon the ABA rating was that, following President Trump’s first Supreme Court appointment, Justice (whose top ABA rating Republicans heavily relied upon), it was reported in March 2017 that “[t]he Trump administration has sent the American Bar Association into exile, ending the group’s semiofficial role in evaluating candidates for the federal bench.” Adam Liptak, White House Ends Bar Association’s Role in Vetting Judges, N.Y. TIMES (Mar. 31, 2017). 8He began in office with a tremendous advantage. See, e.g., Gretchen Frazee, How Trump is Reshaping One of the Country’s Most Liberal Courts, PBS NEWS HOUR (Aug. 19, 2019), https://www.pbs.org/newshour/politics/planned-parenthood-funding-battle-highlights- trump-focus-on-courts (“When Trump took office, there were more than 100 judicial vacancies across the country — twice as many as President inherited from President George W. Bush. The large number of vacancies was due in part to Senate Republicans’ blocking Obama’s nominees.” 9Mark Sherman, Roberts, Trump Spar in Extraordinary Scrap over Judges, (Nov. 21, 2018), https://apnews.com/c4b34f9639e141069c08cf1e3deb6b84. Roberts enigmatically defended judicial independence in a year-end message in December 2019 that some took as an implied rebuke to Trump. See Adam Liptak, Impeachment Trial Looming, Chief Justice Reflects on Judicial Independence, N.Y. TIMES (Dec. 31, 2019). 10See Meagan Flynn & Brittany Shammas, Trump Slams Sotomayor and Ginsburg, Says They Should Recuse Themselves from ‘Trump-related’ Cases, WASH. POST (Feb. 25, 2020). 28-Oct-2020] DENVER LAW REVIEW FORUM 3

umbrage when Trump’s own appointees were criticized by Senate Minority Leader (D., N.Y.).11

Trump has regularly railed against the Ninth Circuit Court of Appeals, in particular.12 When discussing immigration policy, he has stated that “to be honest with you, you have to get rid of judges.”13 During his 2016 presidential campaign, facing litigation over his “Trump University” sham,14 Trump had used racial terms in attacking the Hispanic judge presiding over the case, even falsely accusing him of being born in Mexico.

Trump’s attack on the judge prompted a rebuttal from then-U.S. House Speaker Paul Ryan (R., Wis.) for what he characterized as “the

11Robert Barnes & Colby Itkowitz, Roberts Rebukes Schumer for Saying Justices will ‘Pay the Price’ for a Vote Against Abortion Rights, WASH. POST Mar. 4, 2020. 12See Gretchen Frazee, supra note 8. Yet he has been quite successful in packing it with his own judges. See Susannah Luthi, How Trump is Filling the Liberal 9th Circuit with Conservatives, (Dec. 22, 2019, 3:54 PM), https://www.politico.com/news/2019/12/22/trump-judges-9th-circuit-appeals-court-088833 (“Democratic-appointed judges now hold a three-seat majority, compared with 11 at the start of Trump's presidency.”). 13Steve Benen, On Immigration, Trump Says He Wants to ‘Get Rid of Judges’, MSNBC (Apr. 3, 2019, 1:15 PM). Reportedly, according to the account of one anonymous Administration insider’s book, Trump gave serious thought to reducing the number of federal judges. Michael Warren and Holmes Lybrand, ‘Anonymous’ Book Offers Eye-Popping Insider Details, CNN (Nov. 17, 2019, 9:35 PM). As CNN reported:

“Can we just get rid of the judges? Let's get rid of the [f***ing] judges,” Trump once said, according to the author. “There shouldn't be any at all, really.”

Trump apparently went on to ask his legal team to write up a draft bill to send to Congress that would reduce the number of federal judges.

“Staff ignored the outburst and the wacky request,” the anonymous official writes.

Id. 14See, e.g., Josh Hafner, Judge Finalizes $25 Million Trump University Settlement for Students of 'Sham University’, USA TODAY (Apr. 10, 2018) (“Trump University was not an actual university but a for-profit seminar series, and former students waged a years-long battle claiming the course misled them with claims of teaching real estate success.”). 4 DENVER LAW REVIEW FORUM [28-Oct-20 textbook definition of a racist comment. I think that should be absolutely disavowed. It’s absolutely unacceptable."15

Prior to becoming president, Trump had a long history of legal entanglements—beginning with a housing discrimination case brought against Trump and his father by the Nixon Administration.16

It is clear Trump, who has asserted he is unaccountable to legal processes while president,17 views the judiciary through a contemptuous lens of partisanship and self-interest.18 That contempt seems reflected in controversial criminal he has issued. Trump has, for example, pardoned former Arizona sheriff , who was convicted of contempt of court for illegally continuing “detaining people based solely on suspicion of their immigration status” after being ordered to stop.19 He pardoned right-wing conspiracy theorist Dinesh D’Souza, who had pled

15Tom Kertscher, 's Racial Comments about Hispanic judge in Trump University Case, POLITIFACT (June 8, 2016), https://www.politifact.com/article/2016/jun/08/donald-trumps-racial-comments-about- judge-trump-un/. 16See Jonathan Mahler & Steve Eder, ‘No Vacancies’ for Blacks: How Donald Trump Got His Start, and Was First Accused of Bias, N.Y. TIMES (Aug. 27, 2016) (“Rather than quietly trying to settle . . . he turned the lawsuit into a protracted battle, complete with angry denials, character assassination, charges that the government was trying to force him to rent to “welfare recipients” and a $100 million countersuit accusing the Justice Department of defamation.”). 17See Ann E. Marimow & Jonathan O'Connell, In Court Hearing, Trump Lawyer Argues a Sitting President Would be Immune from Prosecution Even if He Were to Shoot Someone, WASH. POST (Oct. 23, 2019) (“President Trump’s private attorney said . . . that the president could not be investigated or prosecuted as long as he is in the White House, even for shooting someone in the middle of Fifth Avenue.”). Following his Senate acquittal on two House articles of impeachment – one of which the 2012 Republican presidential nominee, Utah Senator , voted for – an uncontrite Trump labeled the process “all bullshit.” Caitlyn Oprysko, ‘It was all bulls---’: Liberated Trump Lets Loose in Victory Speech after Acquittal, POLITICO (Feb. 6, 2020). He then proceeded to fire impeachment witnesses. See Roberta Rampton, Amita Kelly, et al., Vindman, Sondland Removed As Trump Purges Impeachment Witnesses, NPR (Feb. 7, 2020). 18There is some poignancy in this given that Trump’s sister, Maryanne Trump Barry, was a judge on the 3rd Circuit Court of Appeals elevated to that role by President . See Jason Horowitz, Familiar Talk on Women, From an Unfamiliar Trump, N.Y. TIMES (Aug. 15, 2015). 19See, e.g., Julie Hirschfeld Davis & , Trump Pardons Joe Arpaio, Who Became Face of Crackdown on Illegal Immigration, N.Y. TIMES, (Aug. 25, 2017) (“Senator John McCain, also an Arizona Republican, denounced the of Mr. Arpaio.”). 28-Oct-2020] DENVER LAW REVIEW FORUM 5

guilty to making illegal campaign contributions.20 He pardoned military servicemembers for war , shocking military leaders.21

Those pardoned, like former Illinois Governor , who was convicted for crimes including the attempted sale of a U.S. Senate seat vacancy “along with shaking down a children’s hospital and suburban racetrack” have been unrepentant: “‘I’m a Trumpocrat,’ Blagojevich said to cheers from onlookers. ‘If I have the ability to vote, I’m gonna vote for him.’”22 As one reporter noted, “Trump’s pardons have been focused on political allies, friends, friends of celebrities and people who’ve been lucky enough to have advocates who appear with some frequency on .”23

Trump’s contempt for the law has also been demonstrated by his treatment of the Justice Department as an adjunct to his partisan vendettas.24 Trump publicly badgered the Justice Department into recommending leniency for his criminal associate ,25 while also berating the sentencing judge.26 He has branded himself the “the chief law enforcement

20Peter Baker, Dinesh D’Souza, Pardoned by Trump, Claims Victory over Obama Administration, N.Y. TIMES (June 1, 2018) (“Mr. Trump said . . . that he pardoned Mr. D’Souza because he was ‘treated very unfairly.’”). 21See Dave Phillips, Trump Clears Three Service Members in War Crimes Cases, N.Y. TIMES (Nov. 15, 2019) (“The moves signaled that as commander in chief, Mr. Trump intends to use his power as the ultimate arbiter of military justice in ways unlike any other president in modern times.”). 22Sophie Sherry & Stacy St. Clair, Calling Himself a ‘Freed Political Prisoner,’ Rod Blagojevich Thanks Trump and Promises to Cote for Him, CHICAGO TRIB. (Feb. 19, 2020). 23Philip Bump, Trump is making it very clear how seriously he objects to official corruption, WASH. POST (Feb. 18, 2020). 24See Peter Baker, Katie Benner & Michael D. Shear, Jeff Sessions Is Forced Out as Attorney General as Trump Installs Loyalist, N.Y. TIMES (Nov. 7, 2018) (Trump “publicly badgered Mr. Sessions to open investigations into his defeated rival, , and other Democrats.”); see also Frank Bruni, The Perverse Servility of Bill Barr, N.Y. TIMES (Dec. 10, 2019) (writing of Attorney General that “he has bought into the autocratic delusion that Trump equals America, that national interest and presidential prerogative are inextricably intertwined.”). 25Eileen Sullivan, Trump Praises Barr for Rejecting Punishment Recommended for Stone, N.Y. TIMES (Feb. 12, 2020) (“President Trump on Wednesday congratulated his attorney general for intervening to lower the Justice Department’s sentencing recommendation for the president’s longtime friend, Roger Stone, broadening concerns that the department is ceding its independence to the White House.”). 26See Allyson Chiu, Trump Attacks Federal Judge, Prosecutors in Tirade Defending Roger Stone, WASH. POST (Feb. 12, 2020) (“Over the course of about two hours, Trump cranked out six blasts about the handling of Stone’s sentencing, including one that targeted

6 DENVER LAW REVIEW FORUM [28-Oct-20 officer of the country.”27 He has referred to the Federal Bureau of Investigation as “scum.”28

Following President Trump’s intermeddling in the Roger Stone sentencing, a voluntary association of federal judges convened an emergency meeting to address their concerns about interference in politically sensitive cases.29 Yet there had been ample foreshadowing of the president’s extrajudicial presumption. As U.S. District Judge Paul L. Friedman, a senior judge and secretary of the American Law Institute, said in a speech: We are witnessing a chief executive who criticizes virtually every judicial decision that doesn’t go his way and denigrates judges who rule against him, sometimes in very personal terms. He seems to view the courts and the justice system as obstacles to be attacked and undermined, not as a coequal branch to be respected even when he disagrees with its decisions.30

To just cite one of innumerable examples, in response to an early ruling against his administration, Trump “derided as a ‘so-called judge’ . . . a Republican appointee whose vast legal credentials and volunteer work

U.S. District Judge , who is presiding over the case.”); Ann. E. Marimow, Trump Takes on Judge Amy Berman Jackson ahead of Roger Stone’s Sentencing, WASH. POST (Feb. 12, 2020) (“It was not the first time Trump had gone after a federal judge or questioned the judiciary, but Tuesday’s attack was nevertheless vexing to current and former judges as Jackson prepares to decide whether to send the president’s friend to prison — and for how long.”). 27Toluse Olorunnipa & Beth Reinhard, Post-impeachment, Trump Declares Himself the ‘Chief Law Enforcement Officer’ of America, WASH. POST (Feb. 19, 2020). 28Tom Porter, Trump called the FBI 'scum' and hit out at the report that discredited his theory the Russia probe was a deep-state plot at a wild Pennsylvania rally, BUS. INSIDER (Dec. 11, 2019). Trump even assailed his own appointee as FBI director, Christopher Wray. See Marianne Levine & Burgess Everett, Senate Republicans Defend FBI Director after Trump Lashes out, POLITICO (Dec. 11, 2019). 29See Kevin Johnson, Federal judges' Association Calls Emergency Meeting after DOJ Intervenes in Case of Trump Ally Roger Stone, USA TODAY (Feb 18, 2020). 30Katie Shepherd, Trump ‘Violates all Recognized Democratic Norms,’ Federal Judge says in Biting Speech on Judicial Independence, WASH. POST (Nov. 8, 2019). 28-Oct-2020] DENVER LAW REVIEW FORUM 7

for poor children and refugees prompted unanimous Senate confirmation more than a decade ago.”31

This article examines the forces behind the incredible transformation of the federal judiciary that has occurred under President Trump, which will outlast his tenure—whether it be one term or two. It concludes by noting the restraints Trump’s appointees will likely place upon any Democratic aspirations, no matter the outcome of the 2020 presidential election.

GORSUCH NOT GARLAND

When Justice died in February 2016, partisan battle- lines were immediately drawn, with Sen. (R., Tex.), then a presidential candidate, declaring his intention to filibuster any replacement nominated by President Barrack Obama.32 Senate Majority Leader Mitch McConnell (R., Ky.) and Senate Judiciary Chairman (R., Iowa) preemptively wrote a joint op-ed in : “Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court.”33

Obama nominated 63-year-old Judge , who was known for his “centrist reputation” for almost two decades on the D.C. Circuit Court of Appeals, where he had served as its chief judge since 2013.34

Republicans refused to even grant Garland a Senate Judiciary Committee hearing, and as the Washington Post would editorialize following Trump’s 2016 victory: “This was a gamble on a GOP victory in the fall; and there is no denying that, in political terms, it has paid off.

31Jim Brunner, Trump’s ‘So-Called Judge’ is a Highly Regarded GOP Appointee, SEATTLE TIMES (Feb. 5, 2017). And “Trump has repeatedly railed against law enforcement agencies for targeting his associates.” Peter Baker, Trump’s War Against ‘the Deep State’ Enters a New Stage, N.Y. TIMES (Feb. 11, 2020). 32Juliet Elperin & Paul Kane, Supreme Court Nomination Process Sure to be an Epic Debate, WASH. POST (Feb. 14, 2016). 33Mitch McConnell & Chuck Grassley, McConnell and Grassley: Democrats Shouldn’t Rob Coters of Chance to Replace Scalia, WASH. POST (Feb. 18, 2016). 34David A. Fahrenthold, Tom Hamburger & Rosalind S. Helderman, Meet Merrick Garland, President Obama’s Nominee for the Supreme Court, WASH. POST (Mar. 16, 2016). 8 DENVER LAW REVIEW FORUM [28-Oct-20

Contrary to predictions that voters would punish GOP obstructionism, they appear to have rewarded it.”35 In retrospect, for some Democrats, “[t]he issue was, frankly, with Garland himself. He was too moderate and too boring for some, and he just didn’t excite progressives.”36 As one article reported, “One Democratic strategist, who requested anonymity to speak candidly, faulted Obama for not recognizing the war he would be waging with Republicans and for not picking a candidate who could fight.”37 And at least one commentator in 2016 had thought Garland might have actually been more conservative than Scalia on criminal justice.38

It is not clear how things would have been different had Trump lost, as the Washington Post noted, “when it appeared that Hillary Clinton, not Mr. Trump, might be the winner, Republican politicians started moving the goal posts, suggesting that they might not approve any replacement for Scalia, or even fill subsequent vacancies, until the GOP had regained control of the White House.”39 Indeed, Sen. Cruz had stated it wasn’t necessary for there to even be a ninth justice.40

In his first month in office President Trump nominated Neil Gorsuch, a Tenth Circuit Court of Appeals judge, to fill the seat Scalia had occupied—at 49, Gorsuch was the youngest Supreme Court nominee since was confirmed in 1991.41

35Editorial, The GOP’s Gamble on Merrick Garland Pays off, WASH. POST (Nov. 10, 2016). 36Igor Bobic, Amanda Terkel & Jennifer Bendery, Democrats Regret Not Fighting Harder for Obama’s Supreme Court Pick, HUFFINGTON POST (June 27, 2018). 37Id. 38Daniel Denvir, Inside Merrick Garland's Troubling Record: Why He Could Take the Supreme Court Right in One very Important Regard, SLATE (Mar. 17, 2016). In retrospect, however, as abortion rights became increasingly imperiled, it was reported of progressive groups that “[t]heir expectation that Mr. Trump would lose led them to forgo battles they now wish they had fought harder, like Judge Merrick B. Garland’s failed nomination to the bench.” Elizabeth Dias & Lisa Lerer, How a Divided Left Is Losing the Battle on Abortion, N.Y. TTIMES (Dec. 4, 2019). 39Editorial, supra note 35. 40David Weigel, Cruz Says There’s Precedent for Keeping Ninth Supreme Court Seat Empty, WASH. POST (Oct. 26, 2019). 41Robert Barnes, Trump Picks Colo. Appeals Court Judge Neil Gorsuch for Supreme Court, WASH. POST (Jan. 31, 2017). Gorsuch had a long Republican lineage—his mother, Anne M. Gorsuch, was charged with while serving as administrator of the Environmental Protection Agency under President . See Philip Shabecoff, House Charges Head of E.P.A. with Contempt, N.Y. TIMES (Dec. 17, 1982), https://www.nytimes.com/1982/12/17/us/house-charges-head-of-epa-with-contempt.html (“The House vote on the contempt citation of Mrs. Gorsuch was 259 for and 105 against,

28-Oct-2020] DENVER LAW REVIEW FORUM 9

Gorsuch, confirmed within nine weeks,42 was a member of the Federalist Society, which has incubated conservative judicial picks.43 Five justices are members of the group and support it by speaking at its gilded events.44 Of the first 30 federal appeals court judges President Trump nominated, 25 “are or were members of the society.”45 It has been reported that the Federalist Society raised $20 million in 2017 alone.46 Its executive vice president, , has been described as “one of Trump’s judge whisperers.”47 No potent liberal corollary exists to the society.48

A Washington Post investigation found that “behind the scenes, Leo is the maestro of a network of interlocking nonprofits working on media campaigns and other initiatives to sway lawmakers by generating public support for conservative judges.”49 As they reported:

Even as Leo counseled Trump on judicial picks, he and his allies were raising money for nonprofits that under IRS rules do not have to disclose their donors. Between 2014 and 2017 alone, they collected more than $250 million in such donations, sometimes known as “dark money,” according to a Post analysis of the most recent tax filings available.50

with 55 Republicans joining 204 Democrats to vote against the Administration.”). Reagan forced her to step down. Brady Dennis & Chris Mooney, Neil Gorsuch’s Mother Once Ran the EPA. It Didn’t Go Well., WASH. POST (Feb. 1, 2017). 42See Adam Liptak and Matt Flegenheimer, Neil Gorsuch Confirmed by Senate as Supreme Court Justice, N.Y. TIMES (Apr. 7, 2017). 43David Montgomery, Conquerors of the Courts, WASH. POST (Jan. 2, 2019). 44Id. 45Id. 46Id. 47Id. 48Id. 49Robert O'Harrow Jr. & Shawn Boburg, A Conservative Activist’s Behind-the-Scenes Campaign to Remake the Nation’s Courts, WASH. POST (May 21, 2019). 50Id. After Senator Susan Collins (R., Maine) voted for Kavanaugh, “Federalist Society chief Leonard Leo hosted a fundraiser for Collins in August 2019 at his summer home in Maine.” Ruth Marcus, Two Friends, One Judge – and a Fight for the Senate and Supreme Court, WASH. POST (Nov. 21, 2019). And, as Collins was assured on the Senate by Republican colleagues following her vote, “Las Vegas casino billionaire” Sheldon Adelson would be among her most generous donors. Id. 10 DENVER LAW REVIEW FORUM [28-Oct-20

The Federalist Society does not limit its efforts to federal judges. It also influences state judiciaries, as it has under Republican Gov. Ron DeSantis of Florida, who took office in 2019, and filled three Florida Supreme Court vacancies, with two of his appointees almost immediately then tapped by Trump for the Eleventh Circuit Court of Appeals.

As one columnist wrote: “How was DeSantis—new to state government and only in office for weeks—able to quickly select these judges? He did so the same way other conservative governors and Trump do—by turning to the Federalist Society’s list of judicial candidates.”51

In October 2019, a longtime Supreme Court reporter noted of Justice Kavanaugh that

having spent the bulk of last term lying low both doctrinally and also publicly, Kavanaugh appears to be ready to emerge now, in the form of a soaring Federalist Society butterfly. By his watch, apparently, it’s time, and so he will be a featured speaker at the swanky Federalist Society dinner next month (tickets are $250 for nonmembers and $200 for members).52

It was a triumphal appearance, according to the Washington Post: “before a crowd of more than 2,000 supporters, there were standing ovations for the newest justice and for his wife, Ashley, and a message from Kavanaugh that he said could be summed up in one word: ‘gratitude.’”53 The Post noted that “[i]t was the perfect setting for him in front of the conservative legal establishment that championed his nomination. The

51Paula Dockery, Want to be a Judge? Be Nice to the Federalist Society., (Oct. 11, 2019). 52Dahlia Lithwick, Why I Haven’t Gone Back to SCOTUS Since Kavanaugh, SLATE (Oct. 30, 2019). Not answerable to public opinion anymore, Kavanaugh even posed, along with Justice Alito, for photos with anti-LGBTQ+ activists despite the Court considering cases of import to LGBTQ+ civil rights. See Aila Slisko, Supreme Court Justices Brett Kavanaugh and Urged to Recuse Themselves from LGBT Cases, NEWSWEEK (Nov. 7, 2019). 53Robert Barnes, Kavanaugh Addresses the Conservative Legal Establishment that Championed his Nomination, WASH. POST (Nov. 14, 2019). 28-Oct-2020] DENVER LAW REVIEW FORUM 11

Federalist Society has played an instrumental role in President Trump’s record-breaking transformation of the federal judiciary.”54

Another major force in Trump’s success in reshaping the federal judiciary, the Judicial Crisis Network, was set up as a “dark money” force— a “a 501(c)(4) ‘social welfare’ group that doesn’t disclose its donors” to support the judicial nominees of President George W. Bush.55 It subsequently broadened its mission to fight nominees of President Obama, and to get involved in state judicial races.56

As the Washington Post has reported, Leonard Leo is a key player in this organization too: “The ties between JCN and Leo are opaque. JCN’s office is on the same hallway as the Federalist Society in a downtown Washington building, though JCN’s website and tax filings list a mailing address at a different location, an address shared by multiple companies.”57

Senator Sheldon Whitehouse (D., R.I.) wrote an op-ed contending that “[o]ne unnamed donor gave $17 million to the Leo-affiliated Judicial Crisis Network to block the nomination of Judge Merrick Garland and to support Gorsuch; then a donor—perhaps the same one—gave another $17 million to prop up Kavanaugh.”58 The nonpartisan PolitiFact has rated this claim as true.59

In June 2019, it was reported that the Judicial Crisis Network would “spend $1.1 million on national ads demanding that former Vice President and other 2020 candidates release their list of Supreme Court picks.”60 McConnell has also subsequently changed his tune, and said he would vote to fill a Supreme Court vacancy in 2020 if one arose:

54Id. 55Viveca Novak & Peter Stone, The JCN Story: How to Build a Secretive, Right-Wing Judicial Machine, DAILY BEAST (Apr. 14, 2017, 11:55 AM). 56Id. (The group then renamed itself from the “Judicial Confirmation Network” to its present name). 57O’Harrow Jr. & Boburg, supra note 49. 58Sheldon Whitehouse, The Supreme Court Has Become Just Another Arm of the GOP, WASH. POST (Sept. 6, 2019). 59John Kruzel, It’s True: Millions in Dark Money Has Been Rpent to Tilt Courts Right, POLITIFACT (Sept. 11, 2019), https://www.politifact.com/factchecks/2019/sep/11/sheldon- whitehouse/its-true-millions-dark-money-has-been-spent-tilt-c/. 60Marianne Levine, Judicial Crisis Network Pressures 2020 Dems to Release Their Supreme Court Picks, POLITICO (June 25, 2019). 12 DENVER LAW REVIEW FORUM [28-Oct-20

McConnell said his decision to block Obama’s nominee, Judge Merrick Garland, was based on a tradition that opposition parties in control of the Senate do not confirm Supreme Court nominees during presidential election years. He claimed the precedent only applies when different parties control the Senate and the White House — leaving open the possibility he would help advance a Trump nominee in 2020 if Republicans still hold a majority in the Senate.61

The partisan politics are transparent. Following Kavanaugh’s confirmation, it was reported that “[t]he reelection campaigns of President Trump and Senate Majority Leader Mitch McConnell (R-Ky.) . . . unveiled a new t-shirt touting the duo as ‘Back-to-Back Supreme Court Champs,’ in a reference to the confirmations of Supreme Court Justices Neil M. Gorsuch and Brett M. Kavanaugh.”62 McConnell had “described his 2016 move to block Garland—and the subsequent confirmation of Gorsuch after Trump took office—as one of his proudest moments.”63

Part of the victory lap by McConnell and Trump following Kavanaugh’s confirmation included naming to the U.S. District Court for Western Kentucky a 37-year-old former Kavanaugh who had appeared regularly on television to defend Kavanaugh against charges of sexual misconduct, yet had only participated in a single trial and was rated “not qualified” by the ABA.64

61Elise Viebeck, McConnell Signals He Would Push to Fill a Supreme Court Vacancy in 2020 Despite 2016 Example, WASH. POST (Oct. 8, 2018). Indeed, McConnell has gone so far as to urge senior federal judges to quit in 2020 prior to the election. See Carl Hulse, McConnell Has a Request for Veteran Federal Judges: Please Quit, N.Y. TIMES (MAR. 16, 2020) (“Running out of federal court vacancies to fill, Senate Republicans have been quietly making overtures to sitting Republican-nominated judges who are eligible to retire to urge them to step aside so they can be replaced while the party still holds the Senate and the White House.”). 62Felicia Sonmez, Trump, McConnell Campaigns Sell ‘Back-to-Back Supreme Court Champs’ T-shirts, WASH. POST (Aug. 12, 2019). 63Id. 64Alex Swoyer, Senate Confirms Former Kavanaugh Clerk, Defender as District Judge, WASH. TIMES (Oct. 24, 2019); Jordain Carney, Senate Confirms Trump Judicial Pick Labeled 'Not Qualified' by American Bar Association, (Oct. 24, 2019). 28-Oct-2020] DENVER LAW REVIEW FORUM 13

By February 2019, President Trump had installed more federal appeals court judges, with 30 confirmed by the Senate, than any president after two years in office.65 By December 2019, a full quarter of all such judges were Trump appointees.66 As one writer noted, “In less than three years as president, President Trump has done nearly as much to shape the courts as President Obama did in eight years.”67

This record pace has been facilitated by the improvident decision of former Senate Democratic Leader Harry Reid (D., Nev.) to abrogate the filibuster rule for all judicial nominees except for those nominated for the Supreme Court, allowing simple-majority confirmations. 68 Upon Trump taking office this limitation was easily swept aside by Republicans, who went so far as to tauntingly praise Reid, no longer in office, for a 2013 tweet in which he had thanked those who encouraged his “filibuster reform.”69 At the time, it was reported that “Republicans vowed to reciprocate if they reclaim the majority.”70 However anti-democratic the filibuster rule had seemed, it had protected the minority party’s voice.

President Trump’s judicial nominations are not reflective of the country’s demographics. Through August 2019, 78% were men, and 87%

65Ann E. Marimow, Two Years in, Trump’s Appeals Court Confirmations at a Historic High Point, WASH. POST (Feb. 4, 2019). 66Colby Itkowitz, 1 in Every 4 Circuit Court Judges is Now a Trump Appointee, WASH. POST (Dec. 21, 2019) (“So far, Trump has appointed 50 judges to circuit court benches. Comparatively, by this point in President Obama’s first term, he had confirmed 25.”). 67Ian Millhiser, What Trump Has Done to the Courts, Explained, (Dec. 19, 2019, 9:59 PM). 68See Paul Kane, Reid, Democrats Trigger ‘Nuclear’ Option; Eliminate Most Filibusters on Nominees, WASH. POST (Nov. 21, 2013), https://www.washingtonpost.com/politics/senate- poised-to-limit-filibusters-in-party-line-vote-that-would-alter-centuries-of- precedent/2013/11/21/d065cfe8-52b6-11e3-9fe0- fd2ca728e67c_story.html?utm_term=.9d4be1184fee. 69Majita Gajanan, Why Republicans Are Suddenly Thanking Harry Reid for a 2013 Tweet About Filibuster Reform, TIME (June 28, 2018), https://time.com/5324365/harry-reid- filibuster-reform-supreme-court/. 70 See Kane, supra, 68. 14 DENVER LAW REVIEW FORUM [28-Oct-20 were white.71 On the important issues of race and gender that come before the courts it appears Trump is taking no chances.72

Many of the Trump judicial nominees have held views that are astonishing. , nominated to the Second Circuit Court of Appeals, and a former law clerk to Justice Alito, had among other things, advanced the myth that John J. Pershing, an American general in World War I, had executed Muslim prisoners using bullets dipped in pig blood.73 CNN reported that he also had “a history of denouncing women's marches against sexual assault, dismissing education about multicultural awareness and accusing a major LGBTQ group of exploiting the brutal murder of a gay student for political ends.”74 He was still rated “well-qualified” by the ABA, a fact celebrated in the conservative .75 The 40-year- old, who had never tried a case, was confirmed with only a single Senate Republican dissenting.76

Neomi Rao, who replaced Justice Kavanaugh on the D.C. Circuit Court of Appeals, had a record of college writing that appeared to excuse

71 Carrie Johnson, Trump's Impact on Federal Courts: Judicial Nominees by the Numbers, NPR (Aug. 5, 2019). By way of comparison, U.S. Census Bureau statistics show that women comprise 50.8% of the nation’s population, and 76.5% of Americans are white alone. See U.S. CENSUS BUREAU QUICKFACTS, https://www.census.gov/quickfacts/fact/table/US/PST045218 (last accessed Apr. 29, 2020). 72For example, overturning women’s legal access to abortion under Roe v. Wade, 410 U.S. 113 (1973), has long been a conservative priority. It is a right that had taken a significant hit under the Roberts Court even prior to the confirmation of Justice Kavanaugh. See, e.g., Brendan Williams, NIFLA vs. Beccera: Abortion Speech Only as Free as the Supreme Court Wants It to Be, 13 CHARLESTON L. REV. 89, 89–95 (2018). Its erosion has continued with Kavanaugh on the Court. See Adam Liptak, Supreme Court Lets Kentucky Abortion Ultrasound Law Take Effect, N.Y. TIMES (Dec. 9, 2019). 73Daniel A. Cotter, 2nd Circuit Nominee Is One of Trump’s Most Radical Picks, DES MOINES REG. (Oct. 15, 2019, 12:53 PM). President Trump also subscribes to this bizarre, anti-Islam fake history. See Tina Nguyen, Trump’s “Pigs Blood” Response to Barcelona Terror Attack Is Fake News, VANITY FAIR (Aug. 17, 2017). 74Andrew Kaczynski & Em Steck, Trump Court Pick Denounced Feminists, Gay-Rights Groups and Diversity Efforts in 1990s, 2000s Editorials, CNN (Aug. 22, 2019, 5:13 PM). 75Ed Whelan, ABA Awards CA2 Nominee Menashi Highest Rating of ‘Well Qualified’, NAT’L REV. (Sept. 10, 2019, 9:44 AM) (the author found the rating vindication for “the smears that Menashi has been subjected to[.]’). 76Michael McCaulif, US Senate Approves Trump-Appointed NY Federal Appeals Court Judge Who’s Never Argued a Case, N.Y. DAILY NEWS (Nov. 14, 2019) (“The confirmation installs Menashi for a lifetime appointment in seat on the Second Circuit once held by the Supreme Court’s first black justice, Thurgood Marshall—a historical fact that infuriated Senate Minority Leader Chuck Schumer (D-N.Y.).”). 28-Oct-2020] DENVER LAW REVIEW FORUM 15

rapes where a female victim had chosen to drink.77 Poignantly, it was also noted that Rao “as head of the White House’s Office of Information and Regulatory Affairs” had helped implement “the Trump administration’s rollback of Title IX protections for victims of sexual assault on college campuses.”78

During Rao’s confirmation process, she refused to say whether the landmark school desegregation case Brown vs. Board of Education79 was properly decided, putting her in the company of an estimated “20 pending district and appeals court nominees” according to a civil rights group.80 In a 1994 newspaper op-ed, Rao had railed against the “the multicultural nightmare.”81 She asserted that “multiculturalists are not simply after political reform. Underneath their touchy-feely talk of tolerance, they seek to undermine American culture.”82 Upon the D.C. Circuit upholding a House Oversight Committee subpoena of President Trumps’ financial records, Rao issued a dissent that one commentator described as “running interference for the president who put her on the bench.”83

Only the rare Trump nominee has held views outlandish enough to draw even Republican censure. Senator Tim Scott (R., S.C.), an African- American, helped stop one District Court nominee because of his views on

77Li Zhou, is Officially Brett Kavanaugh’s Replacement on the DC Circuit. She’s Faced Scrutiny for Her Writings on Sexual Assault., VOX (Mar. 13, 2019). One conservative newspaper defended Rao by asserting she was “pointing out that there are practical steps women can take to reduce their chances of being victimized.” Inez Feltscher Stepman, A Deserving Pick for the Federal Bench, WASH. TIMES (Feb. 11, 2019). 78Zhou, supra note 77. 79Brown v. Bd. Of Educ., 347 U.S. 483 (1954). 80Patrick L. Gregory, Brown v. Board Turns 65, and Trump Picks Won’t Say It’s Right, BLOOMERG LAW (May 17, 2019). U.S. Senator Richard Blumenthal (D., Conn.) and Derrick Johnson, the head of the NAACP, were among those concerned by this trend, writing that “the Trump administration is so adamant that all nominees refuse to answer the Brown question that even Jeffery Rosen, Trump’s nominee to be deputy attorney general, refused to affirm the Brown decision — and part of his job is to oversee the Justice Department's Civil Rights Division.” Richard Blumenthal & Derrick Johnson, On Brown v. Board of Education, Trump Judicial Nominees Won't Commit to US Law and Values, USA TODAY (May 18, 2020, 8:41 AM). 81Neomi M. Rao, How the Diversity Game Is Played, WASH. TIMES (July 17, 1994), https://assets.documentcloud.org/documents/5684162/7-17-94-Rao-How-the-Diversity- Game-Is-Played.pdf. 82Id. 83Mark Joseph Stern, A Trump-Appointed Judge Is Running Interference for the President on His Financial Records, SLATE (Oct. 11, 2019). 16 DENVER LAW REVIEW FORUM [28-Oct-20 race.84 Senator John Neely Kennedy (R., La.), an attorney, eviscerated an unprepared District Court nominee during a Senate Judiciary Committee hearing in an exchange so painful to watch it went viral.85 That nominee withdrew from consideration, and the Times reported that

the White House pulled back two other Federal District Court nominees who had attracted controversy, Jeff Mateer and Brett Talley. Mr. Talley also had scant trial experience and apparently defended the early Ku Klux Klan under a pseudonym on a sports website. Mr. Mateer once described transgender children as proof of “Satan’s plan.”86

But these are exceptions to a record of successful confirmations. Kennedy, for example, did not oppose the nomination of conservative activist Sarah Pitlyk for the U.S. District Court in St. Louis., whose confirmation, despite a “not qualified” rating from the ABA and no trial or litigation experience, was reported “as yet another mark of the influence of the Federalist Society” of which she is a member.87 Pitlyk had argued that government should treat embryos like humans, which would outlaw even in-vitro fertilization.88

Radical views have become the norm for Trump’s nominees. Stephen Schwartz, nominated to the U.S. Court of Federal Claims, argued in a Yale student newspaper “that the departments of Transportation, Agriculture and Education lack a ‘constitutional basis,’ and that Social Security benefits were intended to prevent ‘outright starvation’ but had

84Rebecca Morin, Tim Scott: GOP Should Stop Nominating Judges with ‘Questionable Track Records on Race’, POLITICO (Dec. 7, 2018). The disappointed Wall Street Journal editorial board alleged that “Democrats are taking racial politics to new heights—and no wonder, since the tactic has again succeeded.” Editorial, Democrats and Racial Division, WALL STREET J. (Nov. 30, 2018). 85See Aaron Blake, That Painful Exchange Between a Trump Judicial Pick and a GOP Senator, Annotated, WASH. POST (Dec. 15, 2017). 86Charlie Savage, Poor Vetting Sinks Trump’s Nominees for Federal Judge, N.Y. TIMES (Dec. 18, 2017). 87Reis Thebault, Trump Nominee Who is Anti-IVF and Surrogacy Was Deemed Unqualified. She Was Just Confirmed., WASH. POST (Dec. 4, 2019). 88Id. 28-Oct-2020] DENVER LAW REVIEW FORUM 17

become a ‘standard component of most retirement programs.’”89 The passage of time had not seemed to moderate the views he held as a student, given that in his legal practice he worked to restrict “the voting rights of African Americans in North Carolina and bathroom rights of transgender students in Virginia.”90

Frustrated by Trump’s judicial successes, progressives have suggested packing the Court, an idea that has been met with receptiveness by Democratic candidates running for the 2020 presidential nomination.91 This was, of course, tried before under President Franklin D. Roosevelt in 1937.92 The Senate Judiciary Committee rebuked Roosevelt’s plan in a stinging report: “Of the ten Senators who signed the document, seven came from FDR's own party, but almost from the opening word the report showed the President's proposal no mercy.”93 As one legal professor recounted:

In a final thundering sentence that, before the day was out, would be quoted in every newspaper in the land, the report ended: “It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”94

Support among the 2020 Democratic candidates for court-packing was not uniform, with even Sen. Bernie Sanders (I., Vt.) warning it is a stratagem Republicans could use when in power—Sanders has instead

89Robert O’Harrow, Jr., Trump Nominee to Federal Court Once Called for Abolishing Social Security, Several Government Agencies, WASH. POST (Feb. 2, 2020). It seems almost metaphysical to wonder how someone would resolve claims against the federal government if they don’t believe in the legitimacy of federal government agencies. 90Id. 91Burgess Everett & Marianne Levine, 2020 Dems Warm to Expanding Supreme Court, POLITICO (Mar. 18, 2019). For example, it was reported that “centrist” , the mayor of South Bend, Indiana, “began his campaign with the kind of bold talk that made the hearts of liberal activists flutter—calling for the elimination of the Electoral College and the expansion of the Supreme Court to 15 justices, so as to end its conservative majority[.]” Jason Zengerle, The Audacity of Pete Buttigieg, GQ (Nov. 19, 2019). 92William E. Leuchtenberg, FDR’s Court-Packing Plan: A Second Life, a Second Death, 34 DUKE L. J. 673 (1985). 93Id. at 675. 94Id. (quoting SENATE COMM. ON THE JUDICIARY, REORGANIZATION OF THE FEDERAL JUDICIARY, S.REP. No. 711, 75th Cong., 1st Sess. 1, 23 (1937). 18 DENVER LAW REVIEW FORUM [28-Oct-20 suggested term limits or rotating judges at the appellate level.95 Two law professors outlined a proposal in Vox of:

changing the Supreme Court from nine permanent justices to a rotating group of justices, similar to a panel on a court of appeals. Every judge on the federal court of appeals would also be appointed as an associate justice of the Supreme Court. The Supreme Court ‘panel’ would be composed of nine justices, selected at random from the full pool of associate justices. Once selected, the justices would hear cases for only two weeks, before another set of judges would replace them.96

Yet among those opposed to the idea of changing the Court’s composition is liberal icon Justice Ruth Bader Ginsburg: “‘Nine seems to be a good number. It's been that way for a long time,’ she said, adding, ‘I think it was a bad idea when President Franklin Roosevelt tried to pack the court.’”97 She has noted term limits would require amending the Constitution.98

The irony is that, with a victory by Hillary Clinton seeming imminent in 2016, some conservatives had suggested shrinking the Court to avoid Clinton-nominated justices, with one writing in the National Review that Congress should pass a law reducing the Court’s membership to six Justices rather than nine—a return to its original size—and in so doing both take the question of Supreme Court appointments off the table for this election cycle and also thereby reduce the capability of

95Gregory Krieg, Bernie Sanders Floats Modified Term Limits for Supreme Court Justices, CNN (Apr. 2, 2019, 12:42 AM). 96Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, VOX (Oct. 10, 2018, 11:25 AM). 97Nina Totenberg, Justice Ginsburg: 'I Am Very Much Alive', NPR (July 24, 2019). 98Id. 28-Oct-2020] DENVER LAW REVIEW FORUM 19

the Court to engage in judicial activism harmful to the Constitution.99

Another writer, a Cato Institute director, wrote simply that “if Hillary Clinton is president it would be completely decent, honorable, and in keeping with the Senate’s constitutional duty to vote against essentially every judicial nominee she names.”100

As a conservative majority busily overturns longstanding precedents, the progressive justices have taken to gloomy dissents. Consider two 2019 cases. In one, Justice Stephen Breyer wrote in dissent: “Today’s decision can only cause one to wonder which cases the Court will overrule next.”101 A month later, Justice wrote: “Under cover of overruling ‘only’ a single decision, today’s opinion smashes a hundred- plus years of legal rulings to smithereens.”102 She wrote that “the entire idea of stare decisis is that judges do not get to reverse a decision just because they never liked it in the first instance.”103 As to Breyer’s warning, she wrote: “Well, that didn’t take long. Now one may wonder yet again.”104

Yet progressives are losing the messaging war. An October 2019 national poll found that 57% of Americans trusted the judicial branch the most of the three branches of government, and 50% viewed the Supreme Court as “moderate”—while another 12% saw it as “liberal” or “very

99Michael Stokes Paulsen, The Case for Shrinking the Supreme Court, NAT’L REV. (Oct. 19, 2016) (interestingly, the author, a law professor, guised his argument as bipartisan: “Neither Hillary Clinton nor Donald Trump can be trusted with Supreme Court appointments — Clinton because of her ideological extremism and Trump because he is simply an entirely untrustworthy, unreliable, dangerous demagogue inclined to rely on his own bad personal instincts and whims.”). 100Ilya Shapiro, The Senate Should Refuse to Confirm All of Hillary Clinton’s Judicial Nominees, THE FEDERALIST (Oct. 26, 2016), https://thefederalist.com/2016/10/26/senate- refuse-confirm-hillary-clintons-judicial-nominees/. The Cato Institute is a libertarian organization that even opposed, during the COVID-19 pandemic, government measures to prevent the spread of the deadly virus. See Ted Galen Carpenter, Preventing Liberty from Becoming a Coronavirus Fatality, FUTURE OF FREEDOM FOUND. (March 30, 2020), https://www.fff.org/explore-freedom/article/preventing-liberty-from-becoming-a- coronavirus-fatality/ (“Governments at all levels have taken ever more extreme (even outrageous) actions in an effort to stem the outbreak.”). 101Franchise Tax Bd. of Cal. v. Hyatt, 139 S.Ct. 1485, 1496-97 (2019). 102Knick v. Twp. of Scott, 139 S.Ct. 2162, 2183 (2019) (Kagan, J., dissenting). 103Id. at 2190. 104Id. 20 DENVER LAW REVIEW FORUM [28-Oct-20 liberal.”105 That was true even though respondents took a generally progressive view of contentious issues before the Court.106 For example, 75% opposed the Court’s 2010 ruling that “[d]ecided that corporations and unions can spend unlimited amounts of money to directly support or oppose political candidates.”107

In part, one can argue Democrats have simply lost credibility in their alarums about the judiciary ever since they lined up to support the nomination of Chief Justice Roberts by President George W. Bush. and then showed no real vigor in moving judicial nominations under President Obama.

In 2005, breaking ranks, Sen. (D., Vt.), the ranking Democrat on the Senate Judiciary Committee, stated that “Judge Roberts is a man of integrity. I take him at his word that he does not have an ideological agenda.”108 As one writer at the time observed: “Though Leahy asked some of the toughest questions of Roberts during the Judiciary Committee hearing on the nomination, and received some of the least-satisfying answers, the senator has now decided to suspend disbelief.”109

Democrats should have been aware of the stakes, having spent so much time bemoaning the Court’s 2000 decision in Bush vs. Gore110 that effectively handed the presidency to George W. Bush.111 Roberts had worked on Bush’s side in the case (as did future Justice Kavanaugh).112

105Press Release, Marquette Law School, New nationwide Marquette Law School Poll finds confidence in U.S. Supreme Court overall, though more pronounced among conservatives (Oct. 21, 2019), https://law.marquette.edu/poll/2019/10/21/supremecourt2019/. 106See id. 107Id.; see Citizens United v. Fed. Election Com’n, 558 U.S. 310 (2010). 108John Nichols, Wrong (Leahy) and Right (Kennedy) on Roberts, THE NATION (Sept. 21, 2005), https://www.thenation.com/article/wrong-leahy-and-right-kennedy-roberts/. 109Id. 110Bush v. Gore, 531 U.S. 98 (2000). 111The legal commentator noted that in the decade following the decision “the Justices have provided a verdict of sorts on Bush v. Gore by the number of times they have cited it: zero.” Jeffrey Toobin, Precedent and Prologue, (Nov. 28, 2010). Even Justice Sandra Day O’Connor, part of the 5-4 majority decision, questioned, in retrospect, whether the Court should have taken up the case. David Jackson, O'Connor questions Bush vs. Gore, USA TODAY (Apr. 30, 2013, 11:18 AM). 112Robert Gordon, Does Brett Kavanaugh Agree with Bush v. Gore?, THE ATLANTIC (Aug. 30, 2018). 28-Oct-2020] DENVER LAW REVIEW FORUM 21

Leahy was not the only Senate Democrat starry-eyed about Roberts—21 other Democrats also supported him.113 Sen. Ron Wyden (D., Or.) rhapsodized in his floor speech that

Judge Roberts' combination of temperament and intelligence give him the potential to be a conciliatory voice at a divisive time. He has the skills to reach across the divisions in America to show that justice can be a healing force for the wounds that cut our society so deeply these days. He can help to unify the country by building a record of well-reasoned opinions, grounded in the , not ideology.114

Twenty members of the Democratic Caucus would also defect from any effort, in January 2006, to filibuster the second Court nomination by President George W. Bush, naming Samuel Alito as an associate Supreme Court justice.115

Within five years, Roberts (along with Alito) had joined a majority that overturned campaign finance laws in Citizens United v. Federal Election Commission,116 a decision that exalted the role of corporate giving by declaring that “corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials.”117

Roberts’ champion, Sen. Leahy, was left to impotently rage on the Senate floor, asserting that “[b]y overturning years of work in Congress to

113Charles Babington & Peter Baker, Roberts Confirmed as 17th Chief Justice, WASH. POST (Sept. 30, 2005), http://www.washingtonpost.com/wp- dyn/content/article/2005/09/29/AR2005092900859.html. 114Press Release, Office of U.S. Sen. Ron Wyden, Wyden Will Vote To Confirm Roberts As Chief Justice Of U.S. Supreme Court (Sept. 28, 2005), https://www.wyden.senate.gov/news/press-releases/wyden-will-vote-to-confirm-roberts-as- chief-justice-of-us-supreme-court. 115Anti-Alito filibuster soundly defeated, CNN (Jan. 30, 2006, 7:56 PM), http://www.cnn.com/2006/POLITICS/01/30/alito/index.html. Justice Alito also was confirmed with the support of four Democrats. David Stout, Alito Is Sworn in as Justice After 58-42 Vote to Confirm Him, N.Y. TIMES (Jan. 31, 2006). 116Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010). 117Id. at 364. 22 DENVER LAW REVIEW FORUM [28-Oct-20 pass bipartisan campaign finance laws, and by reversing a century of its own precedent, the conservative, activist bloc on the Supreme Court reached an unnecessary and improper decision that will distort future elections.”118 He stated that he was “disappointed that Justices, who as nominees before the Senate proclaimed their belief in judicial modesty and judicial restraint, could so brazenly ignore the proper judicial role and in so cavalier a manner overturn Supreme Court precedent and override the rule of law.”119

During the Obama Administration, even while Senate Democrats held a supermajority,120 Sen. Leahy was reduced to forlorn complaints about the pace of judicial conformations. In December 2010, he wrote a column in stating that “[b]ecause of Republican delaying tactics, qualified Obama nominees who have been reported out of the Judiciary Committee have been consigned to spend needless weeks and months in limbo, waiting for a vote from the full Senate.”121 Leahy did, however, acknowledge President Obama’s “laggard performance” in even making nominations, noting “there are 50 circuit and district court vacancies for which Obama has made no nomination.”122 In August 2011 Leahy issued a press release entitled “Senate Confirms Just Four Of 24 Pending Judicial Nominees Before Recess.”123 In it, he bemoaned the fact that

Republican obstruction kept the total confirmations in the first year of the President’s term to the lowest total for a first year in more than 50 years, when only 12 judicial nominees were allowed to be

118Press Release, U.S. Sen. Patrick Leahy, Citizens United Decision “Creates New Rights For Wall Street At The Expense Of Main Street” (Jan. 28, 2010), https://www.leahy.senate.gov/press/citizens-united-decision-creates-new-rights-for-wall- street-at-the-expense-of-main-street. 119Id. 120Upon Sen. (D., Minn.) winning his seat following an extended recount, Democrats held 60 aligned Senate votes. See Monica Davey & Carl Hulse, Franken’s Win Bolsters Democratic Grip in Senate, N.Y. TIMES (June 30, 2009) (“With 60 votes (including those of two independents) now most likely aligned with the Democrats, the party could avoid filibusters.”). 121Patrick Leahy, Advise and Obstruct, N.Y. TIMES (Dec. 14, 2010). 122Id. 123Press Release, Office of U.S. Sen. Patrick Leahy, Senate Confirms Just Four Of 24 Pending Judicial Nominees Before Recess (Aug. 3, 2011), https://www.leahy.senate.gov/press/senate-confirms-just-four-of-24-pending-judicial- nominees-before-recess. 28-Oct-2020] DENVER LAW REVIEW FORUM 23

considered. Republican obstruction kept the two-year total of confirmations to the lowest total in 35 years[.]124

Yet Senate Republicans, even in the minority, did not need to threaten to filibuster to block judges, as Leahy allowed Republicans to stop President Obama’s nominees by simply refusing to sign what was called a “” for any nominee originating from their state. 125 As Eleanor Clift noted“Leahy never once deviated from the blue slip tradition, and 18 Obama appointees never got hearings. All but one was a woman or a minority, part of Obama’s commitment to bring more diversity to the courts.”126 One commentator observed that such a rigid devotion to the “blue slip” tradition had not been seen since segregationist Sen. James Eastland (D., Miss.) allowed Southern senators to block judges that might favor desegregation under the so-called “Eastland Rule.”127 In one extraordinary case, using the power Leahy had conferred, “Sen. Ron Johnson (R-WI) effectively held a seat on the United States Court of Appeals for the Seventh Circuit open for eight years until Trump could fill it.”128 Upon President Trump taking office, Senate Judiciary Chairman Grassley abandoned this “blue slip” tradition, despite Leahy’s guarantees—based upon their 30-year- relationship—he would not.129

But the failure of Democrats to take judicial nominees more seriously was longstanding. When Clarence Thomas was nominated for the Supreme Court, some Democrats might choose to forget, that Senate Judiciary Committee Chair Joe Biden (D., Del.), the future vice president,

124Id. 125See Eleanor Clift, The Unheralded Death of the Blue Slip, DAILY BEAST (Sept. 26, 2017, 6:56 AM). 126Id. 127Millhiser, supra note 67. 128Millhiser, supra note 67.“Leahy continued to defend the Eastland Rule well into the Trump administration. In a 2018 Senate floor speech, he touted the fact that he was ‘criticized by advocacy groups and even the editorial page of the New York Times’ for allowing Republicans to Obama’s nominees, and he painted himself as a hero who ‘resisted such pressure.’” 129Id. Eric Miller, a Seattle attorney, was confirmed to the 9th Circuit Court of Appeals in February 2019, and it was reported that he was “the first judge confirmed in a century over the objections of both home-state senators . . . said Carl Tobias, a constitutional law professor at the University of Richmond School of Law in Virginia.” Gene Johnson & Lisa Mascaro, U.S. Senate Confirms Seattle Attorney to 9th Circuit Court over Objections from Sens. Murray and Cantwell, SEATTLE TIMES (Feb. 27, 2019, 9:12 PM). 24 DENVER LAW REVIEW FORUM [28-Oct-20 made things much worse for Anita Hill, who had accused Thomas of workplace misconduct: “Biden’s colleagues weren’t the only ones to mistreat Hill. He also posed questions designed to humiliate her.”130 Thomas was confirmed by a 52-48 margin.131 He would not have been confirmed without Democratic support: “Eleven Democrats joined 41 of the 43 Republicans in supporting him.”132 Since taking his seat, Thomas, who even the late Justice Scalia had characterized as extreme, has seen the an evolution where positions he “once floated from the margins of conservative thought have moved into its mainstream.”133 He has found a kindred spirit in Gorsuch.134

President Bill Clinton deferred to minority Senate Republicans in choosing Justice Breyer.135 And despite a Senate Democratic supermajority,

130Joan Vennochi, Joe Biden’s Anita Hill Problem, BOSTON GLOBE (Sept. 26, 2018); see also Alexander Burns & Jonathan Martin, Biden Is Preparing for 2020. Can He Overcome the Hill-Thomas Hearings?, N.Y. TIMES (Oct. 1, 2018) (“Publicly, Mr. Biden has expressed regret about the way the Hill hearings unfolded; privately, he has also described it as unfair that Ms. Hill continues to hold him responsible for her rough treatment in the Senate.”). 131R.W. Apple, Jr.,The Thomas Confirmation; Senate Confirms Thomas, 52-48, Ending Week of Bitter Battle; ‘Time for Healing,’ Judge Says, N.Y. TIMES (Oct. 16, 1991). 132Id. 133Emily Bazelon, How Will Trump’s Supreme Court Remake America?, N.Y. TIMES (Feb. 27, 2020). Ginni Thomas, the wife of Justice Thomas, has been an active Trump supporter and conspiracy theorist working to uncover suspected operatives of a “Deep State” embedded within his administration. See Jonathan Swan, Exclusive: Trump's "Deep State" Hit List, AXIOS (Feb. 23, 2020). Her far-right activism has long raised concerns about conflicts-of-interest for Justice Thomas. See, e.g., Jackie Calmes, Activism of Thomas’s Wife Could Raise Judicial Issues, N.Y. TIMES (Oct. 8, 2010) (“In the weeks before a 5-to-4 majority of the Supreme Court, including her husband, decided the 2000 election for George W. Bush over Al Gore, Mrs. Thomas was compiling résumés for potential appointees to a Bush administration from her job at , a conservative, Republican- leaning research group.”). 134See id. (Gorsuch “moved into chambers near Thomas, who invited him over for barbecue and regularly pops into his office to talk, people who know them told me.”). Gorsuch has been a far more evangelical voice than Thomas for the far-right views that they share – active on the public speaking circuit, sitting for “an hourlong special for Fox News,” and appearing on “Fox & Friends.” 135See Linda Greenhouse, The Supreme Court: The Decision; A Nominee Deemed Politic, Not Political, N.Y. TIMES (May 14, 1994) (Clinton chose Breyer over Interior Secretary Bruce Babbitt due to some Republican opposition to Babbitt, even though “no one in the White House or in Congress thought this opposition would be serious enough to defeat a Babbitt nomination if Mr. Clinton chose to make it.”). 28-Oct-2020] DENVER LAW REVIEW FORUM 25

President Obama reportedly wavered on appointing Justice Kagan and contemplated Garland instead as a gesture to Republicans.136

Of Senate Democrats, it was reported in March 2019 that “[p]rogressives have been frustrated by the caucus’s stance toward Trump’s judicial nominations. A report card of senators by Demand Justice released late last week gave 16 Democratic senators a D or an F for their stance on Trump’s nominees.”137

In contrast to Democratic acquiescence, the federal judiciary is more motivating to the Republican base, particularly evangelical voters, as Professor John Fea, the author of a book on those voters, has noted:

Today, the Christian right remains focused on the Supreme Court, which many evangelicals see as the chief impediment to their agenda on issues ranging from school prayer to LGBTQ rights to abortion. Their political playbook requires evangelicals to elect an attentive president who, in turn, will appoint socially conservative federal judges.138

Indeed, prominent evangelist Franklin Graham asserted that sexual assault accusations against Kavanaugh were “not relevant.”139 Liberty University President Jerry Falwell, Jr. “encouraged students to sign up” for bus trips from the school’s Virginia campus to rally for Kavanaugh in

136Peter Baker & Jeff Zeleny, Obama Picks Kagan, Scholar but Not Judge, for Court Seat, N.Y. TIMES (May 10, 2010) (“Judge Garland was widely seen as the most likely alternative to Ms. Kagan and the one most likely to win easy confirmation. Well respected on both sides of the aisle, he had a number of conservatives publicly calling him the best they could hope for from a Democratic president.”). 137Jordain Carney & Rachel Frazen, Court-Packing Becomes New Litmus Test on Left, THE HILL (Mar. 19, 2019). 138John Fea, Why Do White Evangelicals Still Staunchly Support Donald Trump?, WASH. POST (Apr. 5, 2019); see also Michael Tackett, Trump Fulfills His Promises on Abortion, and to Evangelicals, N.Y. TIMES (May 16, 2019) (“Mr. Trump has also repeatedly reminded his supporters of the conservative judges he has appointed to the federal bench as abortion cases make their way through the federal courts.”). 139Joe Marusak, ‘Not relevant:’ Franklin Graham Weighs in on Kavanaugh Sexual Assault Accusations, CHARLOTTE OBSERVER (Sept. 18, 2018). 26 DENVER LAW REVIEW FORUM [28-Oct-20

Washington, D.C., and also allowed them to be excused from classes.140 When Trump awarded the Presidential Medal of Freedom to Ed Meese, who had served as President Reagan’s scandal-plagued attorney general, it was noted that

[t]o movement conservatives like Meese, the remaking of the American courts, particularly on rulings about constitutional and economic matters, is the great crusade that they have been on for forty years or more. And in this key area, Trump has done everything that the conservatives demanded when they threw their support behind him.141

During President Trump’s impeachment, Republican-appointed judges arguably slow-walked litigation essential to uncovering facts relevant to proving accusations of wrongdoing by Trump.142 And there was a strong argument to be made that Republican-appointed judges were complicit in the extralegal process by which Trump began construction on a Mexican border wall for which Congress had not appropriated funds.143 Justice Sonia Sotomayor lambasted the Trump Administration “for repeatedly asking the Supreme Court on an emergency basis to allow controversial policies to go into effect” and accused her conservative colleagues of being eager to go along with such requests. 144

In conclusion, it is possible to provocatively assert that it may not matter much whether a Democrat wins the presidency in 2020, as the deck is already stacked against their success. As Jamelle Bouie has written in the

140Sean Rossman, Kavanaugh Protesters Answered by Supporters from Conservative Liberty University, USA TODAY (Sept. 27, 2018, 11:54 AM). 141John Cassidy, What Ed Meese’s Presidential Medal of Freedom Says About the G.O.P. and Impeachment, NEW YORKER (Oct. 10, 2019). 142Dana Milbank, Trump-Friendly Judges Run out the Clock on Impeachment, WASH. POST (Nov. 18, 2019) (Milbank notes, for example, how “unhurried” one “judge on the D.C. district court, Trevor McFadden, a Trump transition volunteer and Trump DOJ official before Trump appointed him to the court” was in even scheduling arguments on a lawsuit filed by the House seeking Trump’s tax records). 143See David Rogers, Republican Judges do Trump’s Bidding on Border Wall, POLITICO (Jan. 31, 2020) (“[T]he record shows a fresh crop of judges nominated by Trump has stepped in for the president, either to stay injunctions or deny standing to those challenging his unprecedented use of emergency powers to get around Congress.”). 144Ariane de Vogue, Sotomayor Issues Scathing Dissent in Supreme Court Erder that Could Reshape Legal Immigration, CNN (Feb. 25, 2020, 7:51 AM). 28-Oct-2020] DENVER LAW REVIEW FORUM 27

New York Times, even assuming a Democrat wins, “Democrats will still face a hostile Supreme Court majority, with like-minded judges throughout the federal judiciary. They can beat Trump at the ballot box, but unless something is done about the judiciary, they will lose to him in the courtroom.”145

Even if a Democrat wins the presidency, and Democrats take the U.S. Senate majority, a Congress paralyzed by partisan politics is exceedingly unlikely to vote to expand the Supreme Court, as that is a statutory change that would, ironically, implicate the Senate filibuster rule in a way that Court nominations no longer do.146

Of course, Trump could win re-election. In no small part, that might be due to Chief Justice Roberts, whose nomination so many Democrats had supported, having eviscerated the Voting Rights Act in Shelby vs. Holder.147

Should Trump win again, David Frum, a speechwriter for President George W. Bush, predicts that “[a] second-term Trump would surely continue to rely on the countermajoritarian Senate—at this point it’s less democratically representative than the Electoral College—to cram through

145Jamelle Bouie, Mad About Kavanaugh and Gorsuch? The Best Way to Get Even Is to Pack the Court, N.Y. TIMES (Sept. 17, 2019). Law professor Aaron Tang has noted that “[e]mboldened by the confirmation of Justice Brett Kavanaugh, lawyers on the right have asked the Supreme Court to push the law beyond existing boundaries on a range of issues.” Aaron Tang, Conservative Hypocrisy Makes Its Case at the Supreme Court, N.Y. TIMES (Nov. 26, 2019). And some of the new Trump judges are in a hurry to make their mark— judges on the 9th Circuit complained that one new judge, Daniel P. Collins, “sent memos at all times of the night in violation of a court rule and objected to other judges’ rulings in language that some colleagues found combative, they said.” Maura Dolan, Trump has Flipped the 9th Circuit — And Some New Judges Are Causing a ‘Shock Wave’, L.A. TIMES (Feb. 22, 2020). They reported that “Collins also moved quickly to challenge rulings by his new colleagues, calling for review of five decisions by three-judge panels, and some of the calls came before Collins even had been assigned to his first panel, judges said.” Id. 146See 28 U.S.C. § 1 (2020) (“The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.”). 147Shelby v. Holder, 570 U.S. 529 (2013). In a 2019 vote, only a single House Republican supported restoring the lost protections of federal oversight of state elections. Sheryl Gay Stolberg & Emily Cochrane, House Votes to Bolster Voting Rights Over Near Unanimous Republican Opposition, N.Y. TIMES (Nov. 6, 2019). 28 DENVER LAW REVIEW FORUM [28-Oct-20 conservative judges who will act as umpires for a game that the American majority is not allowed to win.”148

In any case, Trump’s legacy will last a long time. As one article noted, “The average age of circuit court judges appointed under Trump is 49.4 years old, according to statistics provided by the office of Senate Majority Leader Mitch McConnell. Circuit court judges appointed by President Barack Obama are, on average, ten years older, McConnell’s office said.”149 Indeed, in boasting of his transformation of the judiciary, Trump has made it clear that those who are over 60 will not be considered for judicial vacancies.150

In contrast, Justice Ginsburg actually was 60 when nominated to the Court by President Clinton.151 It was reported at the time that

one lasting aspect of this nomination may be to restore the notion that mature years are an asset rather than a disqualifying factor for a Supreme Court nomination. At 60, Judge Ginsburg is 17 years older than was President Bush's last Supreme Court nominee, Clarence Thomas; President Clinton's silent message was that he was not seeking to use this nomination to control the Court well into the next century.152

148 David Frum, America After Trump, THE ATLANTIC (Dec. 2019). Less visibly, the Trump Administration has even sought to compromise the roles of federal administrative law judges. See Peter M. Shane, Trump’s Quiet Power Grab, THE ATLANTIC (Feb. 26, 2020) (“If you consider yourself on block watch for threats to democracy, take your eyes for a moment off the president’s Twitter feed and turn your attention to administrative law.”). That effort would surely continue in a second term. 149Daniel Bush, Trump’s Conservative Picks Will Impact Courts for Decades, PBS (Oct. 25, 2019). In one extended analysis, a liberal commentator writes gloomily that “Trump’s Court—the collection of judges and justices now swarming our judicial system, nominated and confirmed to lifetime appointments on his recommendation—will linger, like an infected wound poisoning the body politic even after the initial injury has scabbed over.” Elie Mystal, Donald Trump and the Plot to Take Over the Courts, THE NATION (July 15, 2019). 150Gabby Orr, ‘If You’re 60 or Older, Forget About It’: Trump Sells his Judiciary Takeover, POLITICO (Nov. 7, 2019, 2:48 PM) (“President Donald Trump wants to ensure conservative control of the federal court system for the next 50 years — not just the next decade.”). 151Linda Greenhouse, The Ginsburg Hearings: An Absence of Suspense Is Welcomed, N.Y. TIMES (July 25, 1993), https://www.nytimes.com/1993/07/25/weekinreview/the-nation-the- ginsburg-hearings-an-absence-of-suspense-is-welcomed.html?searchResultPosition=5. 152Id. 28-Oct-2020] DENVER LAW REVIEW FORUM 29

Today, young judges nominated by Trump include Allison Rushing, confirmed at the age of 37 to a lifetime appointment on the Fourth Circuit Court of Appeals despite having interned for the Alliance Defending Freedom, a vociferously-conservative group that litigates against LGBQT+ rights.153 Her nomination was reportedly opposed by “more than 200 civil rights organizations[.]”154 In April 2020, Trump nominated a 37-year-old friend of Sen. McConnell, Justin Walker, to serve on the District of Columbia Court of Appeals that is often a stepping stone to the Supreme Court.155

Accordingly, Democrats running for president should perhaps focus less on what they want to do, but rather on what judges like Rushing will allow them to do over the next few decades.

Postscript On September 18, 2020 Justice Ginsburg died at the age of 87.156 Within just eight days President Trump had nominated 48-year-old Judge of the Seventh Circuit Court of Appeals to the Court,157 in a Rose Garden ceremony that later became notable for being a “super- spreader” event for the COVID-19 respiratory virus.158 Consistent with his position on Judge Garland, Senator Lindsey Graham had previously said many times that no Supreme Court nomination should be considered in an election year, according to reporting:

153Eli Rosenberg & Deanna Paul, The Senate Just Confirmed a Judge who Interned at an Anti-LGBTQ group. She’ll Serve for Life., WASH. POST (Mar. 6, 2019). 154Id. 155See Seung Min Kim, Trump Taps Former Kavanaugh Clerk to Fill Vacancy on Powerful D.C. Appeals Court, WASH. POST (APR. 3, 2020) (“The American Bar Association had deemed Walker not qualified for his current post as judge for the Western District of Kentucky, where he has served for just over five months.”). Predictably, Walker, who had never tried a court case, was a Federalist Society member. Id. 156Robert Barnes & Michael A. Fletcher, Ruth Bader Ginsburg, Supreme Court Justice and Legal Pioneer for Gender Equality, dies at 87, WASH. POST Sept. 18, 2020. 157Michael Kranish, Robert Barnes, et al., Amy Coney Barrett, a Disciple of Justice Scalia, is Poised to Push the Supreme Court Further Right, WASH. POST, Sept. 26, 2020. 158Siobhán O'Grady, In a few Days, More People in Trump’s Orbit Tested Positive for Coronavirus Than in all of Taiwan, WASH. POST, Oct. 6, 2020. 30 DENVER LAW REVIEW FORUM [28-Oct-20

“I want you to use my words against me. If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, ‘Let's let the next president, whoever it might be, make that nomination,’” he said in 2016 shortly after the death of Justice Antonin Scalia. “And you could use my words against me and you'd be absolutely right.”159 Graham quickly abandoned that position upon learning of Ginsburg’s death.160 What passed for Republican questioning in Barrett’s Senate Judiciary Committee confirmation hearing focused on praising the fact that she had seven children,161 and she even fielded a question about who did the laundry in her family.162 More substantively, Barrett, who had served as a “handmaid” in a religious group with very conservative views on women’s roles,163 refused to say whether she supported Griswold v. ,164 the 1965 decision finding a right of privacy that protected the ability of married couples to obtain contraception.165 She refused to say whether she supported Obergefell v. Hodges,166 the 2015 decision finding a constitutional right to same-sex marriage.167 And, as Barrett had signed an ad in 2006 urging the overturning of the “barbaric” precedent of Roe vs. Wade,168 her future path on reproductive rights seems clear—with one Republican senator, for whom

159Matthew S. Schwartz, ‘Use My Words Against Me’: Lindsey Graham's Shifting Position On Court Vacancies, NPR (Sept. 19, 2020), https://www.npr.org/sections/death-of-ruth- bader-ginsburg/2020/09/19/914774433/use-my-words-against-me-lindsey-graham-s- shifting-position-on-court-vacancies. 160Id. 161Robin Givhan, Supreme Court nominee Amy Coney Barrett has Seven kids. And Don’t you Dare Forget it., WASH. POST, Oct. 12, 2020. 162Ruth Marcus, Barrett’s Hearings Were a Frustrating Charade. But They Were Still Chilling., WASH. POST, Oct. 15, 2020. 163Emma Brown, Jon Swaine & Michelle Boorstein, Amy Coney Barrett Served as a ‘Handmaid’ in Christian Group People of Praise, WASH. POST, Oct. 6, 2020. 164Griswold v. Connecticut, 381 U.S. 479 (1965). 165Marcus, supra note 162. 166Obergefell v. Hodges, 576 U.S. 644 (2015). 167Marcus, supra note 162. 168Rebecca R. Ruiz, Amy Coney Barrett Signed an ad in 2006 Urging Overturning the ‘Barbaric Legacy’ of Roe v. Wade., N.Y. TIMES, Oct. 1, 2020. 28-Oct-2020] DENVER LAW REVIEW FORUM 31

opposition to Roe was his litmus test, “awfully clear” as to how she would rule.169 Barrett’s activism with the Federalist Society made her a typical Trump nominee, the Washington Post reported that the group “paid for Supreme Court nominee Amy Coney Barrett to take six trips in her first year as a federal appeals court judge, according to her 2018 financial disclosure report.”170 Democrats in the confirmation hearings were haplessly led by the 87- year-old Senator Dianne Feinstein (D., Ca.), the ranking Democrat, who “repeatedly praised Barrett and her family” during the hearings and effusively praised Senator Graham—even hugging him while both were not wearing face coverings at a time of great concern over COVID-19.171 This prompted progressive groups to call for her ousting as the committee’s Democratic leader.172 Yet, the damage was done: By the end of the hearings polling showed a majority of Americans supported Barrett’s confirmation.173 Prior to the hearings polling had shown that a plurality opposed her confirmation.174

169Id. 170Dan Keating, Federalist Society Funded Trips to Universities and Conventions by Amy Coney Barrett, WASH. POST, Sept. 28, 2020. 171Manu Raju, Top Democrats Refuse to Stand by Feinstein After she Praised GOP Handling of Barrett Hearings, CNN (Oct. 21, 2020, 8:14 AM), https://www.cnn.com/2020/10/20/politics/dianne-feinstein-democratic-senators-judiciary- committee/index.html. 172Id.; John Bresnahan & Burgess Everett, Senate Dems agonize over Embattled Feinstein, POLITICO, (Oct. 20, 2020) (for example, “NARAL Pro-Choice America president Ilyse Hogue said Feinstein ‘offered an appearance of credibility to the proceedings that is wildly out of step with the American people.’”). Senator Grassley was among Republicans coming to her defense. See Mili Godio, GOP Senator Chuck Grassley Slams ‘Sexist’ and ‘Ageist’ Democrats for Calling on Dianne Feinstein to Step Down, NEWSWEEK, Oct. 21, 2020. 173Steven Shepard, Poll: Majority Says Senate Should Confirm Amy Coney Barrett, POLITICO, (Oct. 21, 2020). 174Grace Sparks, CNN Poll: Americans are Divided Over Amy Coney Barrett, CNN (Oct. 7, 2020), https://www.cnn.com/2020/10/07/politics/cnn-poll-scotus-aca-october/index.html. 32 DENVER LAW REVIEW FORUM [28-Oct-20

On October 26, 2020, the Senate confirmed Barrett to the Court.175 She was sworn in on October 27, 2020.176And, just prior to her confirmation, for the first time in four decades there was not a single circuit court vacancy until a fellow circuit court judge died that same day – thanks to the combined efforts of Senate Majority Leader McConnell and President Trump.177 Barrett’s confirmation was a testament to how much the judicial appointment process had changed under President Trump.178 Were Justice Barrett to live as long as Justice Ginsburg, she could be on the Court until 2059.

175 Veronica Rocha, Amy Coney Barrett’s Senate Confirmation Vote, CNN (Oct. 27, 2020, 12:00 AM), https://www.cnn.com/politics/live-news/amy-coney-barrett-senate- confirmation-vote/index.html. 176 Grace Segers, Amy Coney Barrett Sworn in as Newest Supreme Court Justice, CBS NEWS (Oct. 27, 2020 11:18 AM), https://www.cbsnews.com/news/amy-coney-barrett- supreme-court-justice-sworn-in/. 177See Seung Min Kim, Trump’s Conservative Imprint on the Federal Judiciary Gives Democrats a Playbook — if They Win, WASH. POST (Oct. 26, 2020, 8:22 PM) (And yet Democrats, including former Vice President Joe Biden’s closest Senate ally, were exercising learned helplessness in being open to restoring Republican veto power should Democrats take control of the Senate: “Senator Christopher A. Coons (D-Del.) said he would have to think about whether he would support reinstating the blue-slip practice for circuit court nominees.”).. 178See Burgess Everett & Marianne Levine, How the Senate GOP's Right Turn Paved the Way for Barrett, POLITICO (Oct. 26, 2020) (“Just two years ago, Barrett was seen as possibly too conservative to be confirmed by a narrow Republican Senate majority, and too hostile to Roe v. Wade”).