//  6/30/20  //  Commentary

All the recent Republican celebration that 200 Trump nominees to lifetime judicial posts have been confirmed by the Republican Senate ignores the more important numbers that should concern all of us, like 30.5 million Americans seeking unemployment benefits and 124,000 who have died from the coronavirus in the US by early June.   Even as to judicial confirmations, however, the hoopla about 200 ignores another very important number: 79. That’s the number of cases that I have found where Trump-nominated appeals court judges have written or joined opinions that are so extreme that even other Republican-appointed judges have disagreed with them. This includes several Bush appointees who were actually on Trump’s own short list for the Supreme Court. And it includes important decisions concerning women’s rights, civil rights laws, police violence, gun safety, and other important issues.

For example, Trump judge David Stras cast the deciding vote to rule that Samantha Flute could be prosecuted in federal court for manslaughter because she used drugs while pregnant that helped cause the death of her newborn child. Trump Supreme Court shortlister Steven Collotton strongly dissented, explaining that the ruling violated a “settled principle of interpretation.”

In another case, the parents of teenager Ryan Cole tried to hold police accountable for using excessive force in shooting and permanently injuring their son. Eleven judges on the Fifth Circuit court of appeals agreed they could go forward with their lawsuit, including noted conservative Edith Brown Clement and three other judges nominated by President George W. Bush. But four Trump nominees, including Don Willett and James Ho, dissented and argued that the officers should get qualified immunity.

 In an important voting rights case, Trump judge Elizabeth Branch tried to rule that people and organizations cannot file lawsuits against states like Alabama to enforce the federal Voting Rights Act. The majority disagreed, including a Reagan appointee who had declared in 2011 that the Affordable Care Act was unconstitutional. As one commentator pointed out, Branch’s view would make the landmark voting rights law “toothless.”

Trump judge Michael Scudder wrote an opinion, joined by Amy Coney Barrett and the other Trump judges on the Seventh Circuit, ruling that job applicants like Dale Kleber cannot claim that a business’ hiring practices have a discriminatory impact on older workers under the Age Discrimination in Employment Act. Noted Reagan conservative Judge Frank Easterbrook was among the strong dissenters, pointing out that “identical” language in other federal job bias laws allows such claims.

All five of the Trump judges on the Fifth Circuit tried to reconsider a decision involving conservative Bush nominee Priscilla Owen that upheld  a federal gun safety law that requires firearms dealers to sell guns only to state residents, complaining that the ruling was an example of treating gun rights as “second class.” Judge Owen and several other Bush nominees declined to reconsider the ruling.

These cases are only a few examples of how Trump appellate judges and justices are harming Americans by moving the law far to the right, so far that even other Republican judges disagree. More than 350 such cases, including the 79 where other Republican-appointed judges disagree, can be found through People For the American Way’s Confirmed Judges, Confirmed Fears website.  If Trump and the Senate Republican majority are re-elected in November, Trump judges’ far right dissents are all too likely to become the law, doing even more damage to women and other civil rights, police violence, gun safety, health care, and other important areas. All Americans must keep this in mind when they vote in November.


The DACA Decision is Trouble for Discrimination Law

6/24/20  //  Commentary

The Dreamers’ victory has been celebrated as a sign that the Court is above partisanship and willing to serve as a check on executive branch abuses. But the price of that victory was a defeat for the Constitution’s guarantee of equal protection.

Jessica Clarke

Vanderbilt Law School

Versus Trump: The Military in the U.S. and Proxy Voting in the House

6/7/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie take on two topics. First, what can the president legally do to use the military on American soil? Second, is it legal for the House of Representatives to vote by proxy, without being physically present in D.C., as alleged in a new lawsuit by House Republicans? Listen now!

Charlie Gerstein

Civil Rights Corps

Executive Branch Inconsistency on Congressional Standing

4/27/20  //  Commentary

By Ashwin Phatak: Although DOJ has recently taken the position in litigation that the House of Representatives lacks standing to bring a civil action to enforce a subpoena against an Executive Branch official, that position conflicts with prior DOJ precedents

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