How Republicans Corrupted The Judiciary

While Republicans accuse Biden of a court-packing stance he hasn't taken, they've corruptly engineered a conservative judiciary.
Senator Whitehouse (D-RI) outlining the dark money conservative machine that focuses on creating a conservative judiciary – October 13, 2020. (C-SPAN)

Senator Whitehouse (D-RI) outlining the dark money conservative machine that focuses on creating a conservative judiciary – October 13, 2020. (C-SPAN)

Over the past few years, the Republican Party has stolen a Supreme Court seat, confirmed a SCOTUS Justice who was accused of sexual assault and are now trying to ram through a third nomination less than one month before Election Day. On top of that, the GOP has rushed through the confirmations of over 200 federal judges across the country during Donald Trump’s presidency.

These individuals were not picked because of their qualifications, but because they are young, ultra-conservative, and will hold lifetime appointments on their respective courts for decades, allowing them to push partisan opinions into legal decisions. Despite the GOP’s shameful attempt to corrupt the composition of the judiciary to ensure their own political decisions are protected, they have peddled the narrative that Joe Biden and Kamala Harris are intent on packing the Supreme Court with liberal nominees.

This is a typical move by the Republican Party. They have a history of accusing their opponents of engaging in the same behavior that they are committing. If there is one word that sums up Donald Trump and the GOP over the last few years, and many could be used (not all of which are appropriate to print here), it’s ‘projecting’. They project their own criminality, corruption, and craven acts on others. They accuse Democrats of election fraud, when they are trying to undermine the democratic process. They accuse Democrats of promoting fiscally irresponsible policies, when they have pushed America to a point where US debt is larger than the US economy. They accuse Democrats of trying to pack the court, when they have already stacked the court with partisan judges.

Let’s look at the facts. Since 1969, Democratic presidents have appointed four justices to the Supreme Court. On the other side of the aisle, Republican presidents have appointed 15, four of whom were picked by presidents who lost the popular vote. Republicans have routinely exploited congressional rules, such as the filibuster or ‘blue-slips’, to prevent Democratic nominees from even being considered, let alone confirmed to their respective court. During the last two years of Barack Obama’s presidency, Mitch McConnell’s Senate only confirmed 28% of nominees, the lowest number for a two-year period since 1951-52. This move gave Trump more than 100 vacancies to fill on Day One of his presidency, as well as the vacancies that would inevitably arise over the following four years.

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The Republican Party wasn’t doing this in secret. Their de facto leader during this period, Senate Majority Leader Mitch McConnell, openly bragged about how proud he was of the stalling, stacking and packing tactics that the GOP employed. In 2016, he stood on the stage in his native state of Kentucky and crowed: “One of my proudest moments was when I told Obama: You will not fill this Supreme Court vacancy.”.

Last year, McConnell appeared on Sean Hannity’s Fox News show and, when asked why there were so many vacancies left by Obama, he proudly boasted that it was because he “was in charge of what we did the last two years of the Obama administration”. The Republican Party has been doing this in plain sight for years and they have been allowed to get away with it with little criticism or oversight.

Not only has the GOP been allowed to do this, they have been supported in their efforts through dark money forces. As Senator Sheldon Whitehouse (D-RI) laid out at Judge Amy Coney Barrett’s confirmation hearings, groups, such as the Federalist Society and Judicial Crisis Network, have spent millions cultivating young conservatives and funding a campaign to install these partisan appointees on courts to further their right-wing agenda. This has been a successful strategy for them, as these judicial nominees have voted in their favor in at least 80 cases where “there is an identifiable Republican donor interest”. This should concern Americans, as unlimited money is not just flowing into campaigns and corrupting politics, it’s corrupting the judicial process.

This isn’t just a political issue. This is a journalistic issue. The GOP’s absurd narrative has filled the airwaves in recent weeks, as some members of the media have, once again, fallen into the trap of elevating a Republican partisan talking point into a national issue. This is a failure. A failure of those reporters to learn lessons from 2016. A failure to use their position to talk about the real issues that matter. A failure to use their platform to discuss voter suppression or Donald Trump’s failed handling of coronavirus.

Instead of shining a light on the shortcomings of the current administration’s policies and practices, some journalists choose instead to make a scandal out of nothing in order to draw eyes to screens and clicks to news sites. We saw the impact that had in the closing days of Hillary Clinton’s 2016 campaign, as a number of journalists clamored to make further hay out of her so-called email scandal. The 2020 election is too important for them to make similar mistakes. The public should demand more from their Republican politicians, who have focused on repeating these accusations against Biden/Harris, but they should also demand more from their news outlets. Reporters have the power to influence, and at some levels to control, the narrative.

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Ignoring the narrative that the Republican Party has stirred up in recent weeks as a distraction from the real issues, the accusations against the Democrat candidates are just plain wrong. Joe Biden and Kamala Harris have never suggested, and appear to have no intention of, packing the courts with liberal justices in order to achieve partisan gain. In fact, no members of the Democratic Party in Congress are suggesting that. A handful of Democrats have floated the idea that, if the GOP is successful in filling the Supreme Court with partisan appointees and stealing seats through devious political means, then the next president should rebalance the court by appointing liberal justices.

Democrats do not intend on filling the court with liberals. They have simply proposed that, to ensure legal decisions are made by a balanced court, there should be an equal mix of liberal and conservative appointees. Is that not something that Americans want? Why would anyone want a court that leans one way or the other? Should the judiciary not be above politics?

Even if the Democratic Party intended on packing the court, which is not the case, it would not be an unprecedented move. In fact, it would be following a precedent that the Republican Party has set at the state level across America. At least 10 states have attempted to alter the size of their courts, with the majority of those efforts having been made by GOP politicians, including in the two states where these efforts were successful, being Arizona and Georgia.

Arizona state lawmaker J.D. Mesnard even said the quiet part out loud during the efforts to expand their state Supreme Court, revealing that they wouldn’t have supported the legislation to add seats to the court if a Democratic governor had been in power: “I admit it that if there were a different governor, I would have different feelings.”. Once again, it’s one corrupt rule for the Republicans and another fair-minded rule for the Democrats.

Biden and Harris aren’t dodging questions on packing the court. They simply aren’t engaging with a loaded narrative that is designed to weaponize a GOP position and use it to attempt to wound the Democratic Party’s chances on 3rd November. Biden was right to reposition this and shine a spotlight on the GOP’s actions by stating that: “The only court-packing that’s going on right now is with the Republican Party.”.

The GOP has made politicizing the court a mainstay of its agenda and has gotten away with it for far too long. Their contemptible actions in the public eye in recent weeks have simply exposed the Republican Party’s long history of court-packing. While Biden and Harris won’t pack the court, the Republican Party has already done it. If Trump gets four more years in the White House and McConnell keeps control of the Senate, they are only going to further corrupt the composition of the judiciary.

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Opinion // Amy Coney Barrett / Donald Trump / Judiciary / Mitch McConnell / Republican Party / Supreme Court