Op-Ed: McConnell Plots Right-Wing Takeover of the Judiciary

WASHINGTON, D.C.—The United States is governed by three supposedly co-equal branches of government: The legislative, consisting of the Senate and House of Representatives, all elected for either two- (Reps) or six-year (Sens) terms; the Executive, led by the President, elected by a majority of the electors of the Electoral College, and including all members of the cabinet, including the Attorney General, the Secretary of State, Secretary of Defense and 17 other cabinet officers, all appointed by the President and serving at his pleasure; and the Judiciary, led by the U.S. Supreme Court and including all federal appellate and district judges. Notice the crucial difference: The President and all Senators and Representatives are elected, and despite frequent attempts at gerrymandering and outright voter suppression, they technically serve at the behest of the voters, who can vote them out at each scheduled election or even recall them from office in-between. Judges, from the Supreme Court down, are not so limited. True, all federal judges are nominated by the President and must be confirmed by the Senate before serving, but once they're on the bench, the only way to get rid of them is by impeaching them—and as the events of the past few months should have made abundantly clear, impeachment is a dicey proposition at best, and by no means assures that bad actors will be removed. Therefore, U.S. citizens who respect the Constitution should be shaking in their booties to learn that according to an article in The New York Times, Senate Majority Leader Mitch O'Connell and his Republican brethren and sistern "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." And there's no doubt that the Repugs wouldn't mind getting rid of Democratic-nominated judges either! Let that sink in for a second: Altogether, there are 870 "Article III" federal judges currently serving, from the Supreme Court through the Courts of Appeals to the District Courts, and despite what many politicians and even many of the judges themselves may claim, each has a personal political and social philosophy that they bring to the bench, which philosophy often influences the decisions they come to, and the opinions they write. According to the Times, "McConnell ... has been personally reaching out to judges to sound them out on their plans and assure them that they would have a worthy successor if they gave up their seats soon, according to multiple people with knowledge of his actions. It was not known how many judges were contacted or which of them Mr. McConnell had spoken to directly. One of his Republican colleagues said others had also initiated outreach in an effort to heighten awareness among judges nominated by Presidents Ronald Reagan, George Bush and George W. Bush that making the change now would be advantageous." "Advantageous"? To whom? Certainly not to the vast majority of the American people. One can only speculate, but it would seem that getting more Federalist Society-approved judges—members of that organization are the only candidates Trump nominates—would be a boon for millionaires/billionaires seeking to build monopolistic empires, or secure massive tax breaks, or avoid messy lawsuits in which they've been sued for civil rights violations. And let's not forget the Religious Right's fervor to deny common rights to gays and the trans community—and to women who wish to terminate an unwanted pregnancy. The Times story notes that Trump has nominated, and the Senate approved, more than 50 appeals court judges—"more than a quarter of the overall appellate bench"—and, "According to a tally by the Article III Project, more than 90 judges nominated by the three previous Republican presidents are either now eligible or will become eligible this year to take what is known as senior status, a form of semiretirement that enables their slots to be filled. ... Conservatives are eager to see some of the longer-tenured judges make room for younger candidates who could continue deciding cases for decades." Let that sink in: "DECADES"! Republicans are also targeting the more liberal justices on the U.S. Supreme Court, including Justice Ruth Bader Ginsburg (86), Justice Stephen Breyer (81) and Justice Sonia Sotomayor (65)—but of course, not Justice Clarence Thomas (71), though they probably wouldn't mind replacing Chief Justice John Roberts (65), who's recently shown an inkling of openness to consider some issues important to conservatives fairly rather than ideologically. And let's not forget, in June of 2018, so-called "swing justice" Anthony Kennedy voluntarily stepped down, and who did Trump/O'Connell get to replace him? Accused sexual assaulter Brett Kavanaugh. Just today, the ultra-conservative Heritage Foundation's Townhall.com claimed in an email, "Before his passing, the late Justice Antonin Scalia explained why the U.S. Supreme Court had not yet acted to end Roe v. Wade stating, 'I am against abortion. I want to end it! But where is the moral outcry?'" Of course, that "moral outcry" wasn't needed, since McConnell screwed Merrick Garland, Obama's chosen replacement for Scalia, out of consideration for no reason other than to give what he hoped would be the next Republican President—Trump!—the chance to fill the seat, as he did with religio-conservative (and virulently anti-abortion) Neil Gorsuch. Obviously, one major concern for the adult industry will be what will happen to laws regarding "obscenity." After all, the concept itself is unconstitutional; the First Amendment doesn't say, "Congress shall make no law ... abridging the freedom of speech, or of the press unless the speech/magazine/DVD/website in question is sexual." But now that obscenity is established precedent, what's to stop those new federal judges from attempting to expand on the Supreme Court's current definition—changes that could easily find favor if Trump gets to nominate another Justice before he's voted out? Back in the late 19th/early 20th century, a work could be banned because of its alleged effects on "the most susceptible persons," or if the material, or even isolated portions of it, had a "substantial tendency to deprave or corrupt by inciting lascivious thoughts or arousing lustful desires." No reason that couldn't become the law again—and Trump's evangelical base would love that! Or how about making "community standards" local again, rather than national? Something could therefore be obscene in Mississippi but fine in New York. Remember: Before the virus hit, Republicans on multiple fronts were trying to ramp up anti-porn sentiment at the Justice Department. Also, without going into detail, other constitutional rights like freedom of (or more specifically from) religion, search and seizure, right not to be a witness against one's self, and the biggie: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" (such as a right to healthcare)—all could be sharply curtailed by a new, ultra-conservative judiciary. In fact, Attorney General William Barr is champing at the bit to do just that. According to an article published on the legal website AboveTheLaw.com, a DOJ memo to Congress regarding "procedural modifications to deal with the COVID-19 pandemic," according to Politico.com's Betsy Woodruff Swan, would grant judges "broad authority to pause court proceedings during emergencies. It would apply to 'any statutes or rules of procedure otherwise affecting pre-arrest, post-arrest, pre-trial, trial, and post-trial procedures in criminal and juvenile proceedings and all civil process and proceedings.'" In other words, bye-bye speedy trial requirements and pre-arrest and pre-trial detention! And beyond enumerated rights, the courts could more easily deny standing to groups and individuals who seek to challenge various laws and statutes, much as Woodhull Freedom Foundation is trying to do with FOSTA/SESTA, and the Mozilla Foundation, EFF and others are trying to do with net neutrality. Finally, let's consider the possible likely issues surrounding Trump's ability to remake the judiciary to benefit himself. Over the past three years, mainstream media has reported on several crimes Trump has committed as a "civilian"—charity fraud, tax evasion, violation of his lease on his D.C. hotel, etc., etc.—that, once he's out of office, he could (and probably would) be held accountable for. And what will happen if any (or all) of his cases wind up in front of Trump-appointed judges? Is there really any chance those judges will treat him fairly? Moreover, "Senator McConnell knows he can’t achieve any of his extreme goals legislatively, so he continues to attempt to pull America to the far right by packing the courts," Senator Chuck Schumer, Democrat of New York and the minority leader, said in a statement, to which Brian Fallon of the progressive judicial group Demand Justice added, "If Mitch McConnell is having direct conversations to pressure sitting federal judges to basically retire so Trump can name more picks, it is court-packing in a different form." One thing's for sure: Adult industry members will certainly suffer greatly if that plan goes into effect. Pictured: Screen grab from "Full Frontal with Samantha Bee"