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Bill Straub: ‘Spoils system’ on full display as judges with questionable qualifications get appointments


It was Sen. William L Marcy, assessing some of the questionable appointments rendered by President Andrew Jackson back in the day, who initially said, “to the victor belong the spoils,’’ thus brilliantly summing up the American form of democracy in one, deft phrase.

Things have changed very little since the 1830s when Marcy, of New York, prowled the corridors of power. Despite occasional congressional attempts to successfully reel in some of the most outrageous presidential nominations – Robert Bork, anyone? – the party in power utilizes its position to ensconce some individuals to high public office that the smallest city council in the commonwealth of Kentucky wouldn’t choose to serve as dog catcher.

The spoils system is on full display today as President Trump, aka President Extremely Stable Genius, aka President Great and Unmatched Wisdom, with the able assistance of Senate Republican Leader Mitch “Corrupt’’ McConnell, of Louisville, runs roughshod over the nation’s federal judicial system.

Essentially, the only thing the Trump administration and the Senate accomplished in 2019 – as hundreds of bills passed by the House gathered dust on McConnell’s upper chamber desk – was to stack the nation’s courts of justice with youthful right-wing crazies, many of them obviously inept, who will form American jurisprudence over the current and upcoming generation.

And you know what? You can’t blame them. Republicans hold the cards. They control the presidency and the Senate, giving the party carte blanche to provide every Tom, Dick, and Harry it desires with a judicial robe. It would be rather naïve to think the GOP is going to appoint Democrats, liberals or, for that matter, competent individuals when they hold the ability to guide the nation down a reactionary garden path.

Losing control over judicial nominations was the first thing that threw in-the-know Democrats into a tizzy when the results of the November 2016 election came flying in. For inexplicable reasons, for more than 50 years dating back to the Nixon administration, rank-and-file Republicans have placed greater emphasis on judicial appointments than Democrats. The Dems have been warned time and again about the consequences of Republicans running a fast break when it comes to placing individuals on the bench. But the red flares went unheeded.

Now they’re reaping the whirlwind. Can you say Justice Neil Gorsuch and Justice Brett Kavanaugh? As of Jan. 1, 2020, the Senate has confirmed 50 judges for the various U.S. Courts of Appeal and 133 judges for the U.S. District Courts to go along with the two positions on the U.S. Supreme Court. A whopping 25 percent of the judges sitting on the Courts of Appeal were appointed by Trump.

And it doesn’t end there. Currently, Trump has two Courts of Appeals nominees and 30 nominees for District Courts pending. McConnell, no doubt, will see that they are confirmed in short order. And more vacancies are mounting up.

Republicans can and should be credited, from a political standpoint, for recognizing the power of judicial appointments. Trump was right, for a change, when he noted last November that, “I’ve always heard, actually, that when you become president, the most — single most important thing you can do is federal judges.”

They may save his bacon, after all. Questions about Trump violating the constitution’s emoluments clause and ongoing investigations regarding the president’s finances in the Southern District of New York could easily be waylaid by a sympathetic judge who just happened to be nominated by the man in question. And, of course, there’s always legal questions about Obamacare and the majority on the Supreme Court could be chomping at the bit to take a new look at Roe v. Wade.

This is all in McConnell’s wheelhouse, using the GOP majority in the Senate to, as he has said, “Leave no vacancy behind.’’ It is fair to say that every matter facing the upper chamber including, it seems, impeachment, is taking a backseat to judicial appointments. I wrote some months back that ol’ Root-‘n-Branch didn’t really care much if Republicans lost the House majority as long as the Senate maintained the power to appoint judges. That has proved fairly prescient.

As previously noted, McConnell deserves credit for concentrating on the federal courts. How that has manifested itself, however, is another matter, steamrolling anyone in the way no matter how legitimate the concern. He bottled up so many of President Barak Obama’s judicial nominations for no clear reason other than partisanship while the GOP was in the minority that majority Democrats changed the rules – prohibiting filibusters of judicial nominees other than those for the Supreme Court.

Later, after grabbing the majority, McConnell changed the rules so Supreme Court nominees likewise could not be filibustered. And he did away with the blue slip system, which allowed senators from a nominee’s home state to block confirmation.

And do we really have to go into Merrick Garland just now?

As has become obvious, McConnell is like a ballplayer on PEDs – he excels when he cheats.

The looming problem in all this is some of the nominees Trump is sticking on the bench with McConnell’s aid are either incompetent or so wacky that the Constitution might as well be a Marvel comic book.

Trump has made it clear that the American Bar Association’s traditional role screening candidates to determine their qualifications means as much to him as common decency – which is to say not a whit.

Regardless, as of Dec. 2 the ABA had determined that nine of Trump’s judicial nominees were not qualified. Since 1989, a total 21 nominees from various administrations – including the current — were rated not qualified, meaning Trump is responsible for 43 percent of all unqualified nominees over 30 years after having served less than three years in office.

Four of those determined to be not qualified – Steven Grasz, a nominee to the U.S. Eighth Circuit Court of Appeals, John O’Connor, a nominee to the U.S. District Courts for the Northern, Eastern, and Western Districts of Oklahoma, Brett Talley, a nominee to the U.S. District Court for the Middle District of Alabama and Sarah Pitlyk, a nominee to the U.S. District Court for the Eastern District of Missouri, were unanimously determined to be unqualified by the ratings panels. Two – O’Connor and Talley — had their nominations pulled.

Grasz, only the second nominee since 1989 to be found unanimously not qualified, was determined by the ABA to have “temperament issues, particularly bias and lack of open-mindedness, were problematic.” Pitlyk, an anti-abortion crusader, was found not qualified because she had never tried a case in court. In fact, she had never even taken a deposition.

Both Grasz and Pitlyk were confirmed, which tells you as much about the quality of the members of the Senate Republican Caucus as you need to know.

The most entertaining not qualified nominee may have been Lawrence VanDyke, a nominee for a seat on the U.S. Ninth Circuit Court of Appeals, who started visibly weeping when questioned about an ABA not qualified rating that found him to be “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules.” Oh, and he has also established that he is opposed to same-sex marriage, civil rights protections for LGBTQ Americans and the rights of gay students to join school clubs.

Like Grasz and Pitlyk, VanDyke was confirmed by gutless Senate Republicans. Among those voting for him was Sen. Rob Portman, R-OH, who has a gay son.

That is just sad.

And the beat goes on.

KyForward’s Washington columnist Bill Straub served 11 years as the Frankfort Bureau chief for The Kentucky Post. He also is the former White House/political correspondent for Scripps Howard News Service. A member of the Kentucky Journalism Hall of Fame, he currently resides in Silver Spring, Maryland, and writes frequently about the federal government and politics. Email him at williamgstraub@gmail.com.


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