The Unspoken Branch
By Oliver Kline
With the 2020 election cycle drawing closer with each passing day, many are reasonably focused on winning back the White House. According to FiveThirtyEight, 40% of Democrats agree beating President Trump next year is priority number one. Former AG Eric Holder has described the 2020 presidential election in terms of “existential importance.” Others have turned their attention to the state elections. GW Democrats have, for example, campaigned tirelessly for candidates for the Virginia state legislature, securing a crucial victory in flipping both the state house and senate.
On both a local and national level, legislative and executive politics are certainly important to many.
Meanwhile, however, judicial politics have quietly gone rather uncontested. Since President Trump took office, he has already appointed over ¼ of all sitting federal appeals judges and has gotten well over 150 judges confirmed by the Senate. As of August, 78% of those appointments were male and 87% white. But President Trump has not only molded the courts to become more conservative but significantly younger as well. According to the White House, the average age of an appointee is under 50 years old, a decade younger than the average appointee by President Obama. Most of these appointments are young enough to hold their positions for 30 to 40 years, and are expected to serve a combined 2,600 years on the courts.
But to call these appointments conservative actually understates many of their radical positions. While many conservative justices like Chief Justice John Roberts have characterized the 1954 case Brown v. Board of Education one of the “bedrocks of democracy,” many recent appointments have refused to support or even comment on the case that paved the way for racial integration in schools and tore down the “separate but equal” doctrine.
Steven Manashi, an appointee for the 2nd Circuit Court of Appeals, is one of President Trump’s most controversial appointments. He recently came under fire from the Senate Judiciary Committee for his radical writings and opinions. In 2010, he wrote “Ethnonationalism and Liberal Democracy,” a journal article supporting the right of liberal democracies to adopt ethnic preferences in immigration law, writing “ethnic ties provide the groundwork for social trust and political solidarity.” In another publication, Menashi explicitly compared colleges that allow applicants to disclose their ethnicities to the Nuremberg Race Laws that both violently and systematically targeted Jewish Germans. Still, despite his inflammatory writings on immigration, race, abortion, and feminism, Steven Menashi was just recently confirmed by the Senate Judiciary Committee and will soon be sent to the Senate floor.
President Trump’s subtly swift reorganization of the courts has put sacred precedent at risk. Just recently, the Supreme Cout decided to take on June Medical Services v. Gee, asking whether physicians performing abortions must have admitting privileges at local hospitals. Allowing such arbitrary requirements would shut down many abortion providers and restrict access for many women, especially in rural and low-income communities. The Supreme Court, now more than ever, is brandishing its ability to gut Roe v. Wade’s protections.
The federal judiciary thus far has been an effective bulwark against the President’s agenda—from matters as significant as striking down the Muslim ban and holding up DACA to as restricting his ability to block people on Twitter are just a few instances where the courts have been able to stand up to the President. But if President Trump’s reshaping of the federal judiciary continues to go unpunished, judicial politics could remain gripped by conservative interests for decades to come.
Oliver Kline is a freshman studying Political Science from Portland, Oregon