Tomorrow, the Senate Judiciary Committee will vote on three judicial nominees: Halil Ozerden, Justin Walker, and Lee Rudofsky. Each in their own way belies any pretense that conservatives care about an independent judiciary, unbiased jurists, or —to parrot a standard GOP talking point — judges who will only interpret the law, not make it. Their nominations lift the veil off the conservative objective to use the courts to achieve their political and policy ends.
In reality, Republicans expect loyalty, not independence, from judges. These nominations illustrate that they are unabashed in their wish to pack the courts with ultraconservative hyperpartisans rather than neutral judges who will dispassionately apply facts to law.
- Halil Ozerden. Ted Cruz and right wing organizations opposed Ozerden, someone with an ultraconservative record as a trial judge, because Ozerden dismissed a case, without prejudice, challenging rules under the Affordable Care Act (ACA). Since regulations were not yet final, Ozerden found the case wasn’t ripe (in other words, he applied rules learned by every first-year law student). At his hearing, Cruz directly asked Ozerden if he’s ever “been affiliated with the conservative movement.” He asked him if he ever “volunteered his time to advance conservative causes?” The ethical answer to this question is, “I am a judge, it is not my job to advance conservative causes, or liberal causes. It is my job to apply facts to law.” But, that is not what Judge Ozerden did. Feeling the need to meet Ted Cruz’s litmus test, he regaled the committee with his work on behalf of Republican candidates.
- Justin Walker. Walker, an outspoken critic of the ACA, certainly met Cruz’s test. The ABA, however, deemed him unqualified because of negligible trial experience. Yet, Republicans had no problems voting to confirm him. Moreover, Walker made his own views of what qualifies a person to be a federal judge very clear in one of his 119 media appearances (118 more than the number of depositions he has taken) on behalf of Brett Kavanaugh. He said Kavanaugh should be confirmed because he was a “warrior” for “conservative legal principles,” “who will not go wobbly.”
- Lee Rudofsky. Rudofsky has spent his career curtailing critical rights and protections. He has been a leader in the effort to strip millions of people of access to vital health and reproductive care; he has a record of hostility to protections for clean air and clean water; he opposed protections for immigrants; and he sued to prevent four million workers from becoming eligible for overtime pay. In Arkansas, Rudofsky also defended the state’s attempt to undermine Obergefell v. Hodges by not recognizing same-sex couples as the parents of their own children. Yet, even with this record, Rudofsky was so terrified of Republican opposition that at his hearing he felt he had to kowtow to right wing extremists and disavow previous support for same-sex marriage.
Recently, Mitch McConnell said, “My Republican colleagues and I will fight to preserve a fair and independent judiciary.” In reality, McConnell and other conservatives care little about independent judges. If they had, they would have at least given mainstream jurist Merrick Garland a hearing. McConnell would have admonished President Trump’s repeated attacks on the federal courts (“a joke and a laughingstock,” “a dangerous disgrace,” “a complete & total disaster,” and “out of control”) and federal judges who have ruled again him. McConnell would have cared when Neil Gorsuch did a campaign style “victory lap” with him or attended a fundraiser at Trump’s Hotel.
Ted Cruz more accurately embodies a Republican vision for our courts. He has asked a judge what he has done to advance “conservative causes” and then opposed that judge because he didn’t rule against ObamaCare regulations; he likely will support an unqualified talking head with minimal trial experience whose ideal judge is a “warrior” for conservativism who will not go “wobbly”; and he will likely support a nominee only after he disavowed support for marriage equality.
The fact is, Republicans do not want unbiased judges who neutrally and dispassionately apply facts to established law. Rather, conservatives know they cannot achieve their unpopular policy objectives through the democratic process — one need only look at Republican failure to repeal the Affordable Care Act even with both houses of Congress and the White House. So, instead, they wish to pack the federal bench with ultraconservative hyperpartisan jurists who will advance Republican policy objectives. In fact, Trump judges have largely been united in their commitment to using the courts to attack access to health care; to undermine the rights of people of color, women, LGBTQ Americans, immigrants, workers, and consumers; and to destroy environmental protections.
To paraphrase Justin Walker, these are “warriors” in robes; and no one should be fooled by Mitch McConnell’s token talking point about judicial integrity.