How Trump's maniac judges could be his downfall
How Trump's maniac judges could be his downfall
Conservatives hijacked the judiciary. Make them own the fallout.
Welcome to a Wednesday night edition of Progress Report.
Tonight we’re talking about the presidential race, controversial new court decisions, campaign strategy, abortion rights, and how Democrats can — and must — flip the perception of why everything feels so miserable right now.
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When sitting presidents run for re-election, the race is virtually always a referendum on their first term in office, a quadrennial reassessment of the state of the nation and, as Ronald Reagan asked voters in 1980, whether they’re better off today than they were four years ago.
Unfortunately for President Biden, as much as the White House tries to tout its impressive record of job creation and infrastructure investments, polls show that voters think the country is headed in the wrong direction as compared to four years ago. Whether that’s true or not — many people have memory-holed the devastating pandemic and mass unemployment of 2020 — is irrelevant.
As grim as things currently look for Democrats, the uniqueness of this race and the power dynamic in government together offer an opportunity almost without precedent: For the first time in over a century, a sitting president isn’t running against a challenger with a blank slate.
Democrats don’t even have to worry about trying to coax Americans to remember the nightmares that Trump and the GOP foisted upon them seven years ago. While the current administration has done its fair share to earn enmity on its own terms, especially in Gaza, much of the gloom that hangs over the electorate can be attributed to Trump’s ongoing impact on governance.
Courting disaster
Conservatives long ago realized that most of their ideas are too repugnant to enact without triggering an immediate backlash that wipes them out of power, so they trained their sights on commandeering the federal judiciary so that they could chisel away at free society little by little.
The most obvious example is the GOP’s capture of the Supreme Court, which has made life hell for millions of Americans during Biden’s first three years in office. With a 6-3 far-right majority cemented under Trump, the court has overturned Roe v. Wade, eviscerated gun control laws, blocked the administration’s mass student debt cancelation plan, and opened the door to public funding of religious schools, among other unpopular decisions. Lower courts, loaded with zealous reactionaries installed by Trump and George W. Bush, have issued a litany of other vile decisions that have had materially negative impacts on Americans, as well.
On Tuesday, the 5th Circuit Court of Appeals upheld a new Texas law barring minors from obtaining birth control without parental consent. The ruling, written by Judge Kyle Duncan, affirmed a decision by U.S. District Judge Matthew Kacsmaryk, who in 2022 decided that a federal law permitting teenagers to confidentially obtain contraception at federal clinics was an unconstitutional violation of “parents’ rights.”
Before being given lifetime positions on the judiciary by Donald Trump, both Kacsmaryk and Duncan worked in the far-right Christian legal movement, launching anti-LGBTQ and anti-choice lawsuits on behalf of the Becket Fund for Religious Liberty and the First Liberty Institute. Kacsmaryk last year suspended the FDA’s approval of abortion medication, defying two decades of scientific evidence to rule in favor the Alliance Defending Freedom, the Christian nationalist legal organization that filed the lawsuit that resulted in the Supreme Court overturning Roe v. Wade.
Listen to what Kacsmaryk says below and tell me that Democrats shouldn’t make this guy the avatar of a second Trump term….
Last Friday, another U.S. District judge blocked a new rule by the National Labor Relations Board that would have held major corporations responsible for the treatment of subcontracted employees and made it far easier for many workers to unionize. Instead, Judge J. Campbell Barker returned the NLRB to the standard established under President Trump, which provides corporate immunity to fast food chains, meat processors, and many other companies that use contractors on a day-to-day basis.
Barker, who previously served as the Deputy Solicitor General of Texas, has also proven consistently ideological during his time on the federal bench; in 2021, his antipathy for working people led him to strike down the Biden administration’s attempt to extend the Covid-era eviction moratorium.
To review, between the Supreme Court and just those three federal judges, they have:
Stripped away abortion rights and access to contraception;
Dashed the dreams and drained the bank accounts of 20 million people who thought they’d been liberated of their student loan burden;
Triggered a national eviction and housing crisis
Kept millions of food service workers stuck in a legal workplace caste system;
Allowed guns to further flood the streets.
While just a small sampling of the cataclysmic decisions made by federal judges over the past few years, the list above nonetheless represents a sizable portion of the problems that have darkened the national mood and continue to fuel the existential angst of so many American voters. They can all be directly attributed to Donald Trump, but only if Democrats rethink their entire approach to this campaign.
Politicize the Court!
Democrats, much to my chagrin, have largely resisted the obvious political and moral benefits of criticizing the Supreme Court’s legally dubious and largely outrage-inducing decisions. Worse, they’ve done absolutely nothing to educate the public about the fanatics that have taken control of the federal judiciary and eroded decades of forward progress in just a few years. In the absence of such an effort, it was inevitable that Americans would begin to blame Biden for all of the nation’s problems.
Remember, not everybody consumes as voraciously as you do, nor do they have the bandwidth to remember specific court cases. For example, polls conducted last summer indicated that Americans initially blamed the Supreme Court for the demise of the White House’s student debt cancellation plan, but more recent focus groups have found voters pinning it on Biden.
Meanwhile, in a major poll released last week, voters gave Biden just a 37%-33% edge over Trump on who would better handle abortion. Even more unsetting, Trump led by ten points on gun policy, suggesting that virtually nobody is aware of recent judicial decisions that dismantled most regulations on firearms.
Democrats can try to remind people of Trump’s tax breaks for the rich and the millions of jobs lost when he botched the government’s response to Covid, but Americans are not particularly fond of looking backward. Similarly, as much as Biden wants to stress that democracy itself is in danger, the insurrection and Trump’s attempts to overturn the election have become afterthoughts to most voters.
A politicized judicial system should be treated like a political entity, not shown the deference that was once afforded to largely impartial — or at least rational — federal judiciary. It needs to be made clear that Trump is responsible for so many of the anxieties and miseries that people are now experiencing, and that should he return to the White House, he will resume installing the sort of judges that have already stripped away so many of their freedoms.
There should be no hesitation to make household names out of the far-right judges wielding their power to the detriment of so many millions of Americans. People should know that Trump empowered Matthew Kacsmaryk, Kyle Duncan, and J. Campbell Barker to take away their health care, seize control of their bodies, and dash their hopes of ever having the job security and regular raises afforded by a union.
Each indignity is a tangible result of Donald Trump’s time in office, and just a preview of what’s to come should he win back the White House.
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