Congress Should Impose A Moratorium On Judicial Appointments Until The Special Counsel's Investigation Is Completed

The politicization of the judicial branch has reached new heights.
11/20/2017 08:08 pm ET Updated Nov 21, 2017
President Trump observes as Associate Justice Neil Gorsuch (left), flanked by his wife, is sworn in by Associate Justice Anth
Photo Credit: E. Vucci
President Trump observes as Associate Justice Neil Gorsuch (left), flanked by his wife, is sworn in by Associate Justice Anthony Kennedy (right).

A moratorium on all future judicial appointments should be imposed by Congress until Special Counsel Robert Mueller’s investigation comes to a close.

Since President Trump’s inauguration, nearly 70 judicial nominations have been under consideration to fill approximately 155 federal judicial vacancies. A few of the president’s nominations have raised eyebrows on both sides of the aisle ― the latest being Brett Talley, a 36-year-old legal novice, who has never tried a case.

With apparent ties to the Trump administration, it is no surprise Talley is a member of an exclusive club. Four of Trump’s judicial nominations have been deemed “not qualified” by the American Bar Association, four candidates in 10 months; a historic feat in its own right.

A political fight for control over the judicial branch has simmered for generations. The simmer is quickly approaching a rolling boil. What was once heralded as a coveted honor, bestowed only upon great legal scholars who devoted a lifetime of service to the United States, is now diminished to a political game of monopoly.

Political parties seem to care less about civility, shared values, and placing country above party. The days when a diverse group of judges could set aside their political differences to agree on an interpretation of the Constitution that upheld and protected a woman’s right to choose, seem long gone.

To the casual reader, some context may be necessary. Roe v. Wade, the Supreme Court case referenced above, won by a 7-2 margin. A winning coalition was facilitated by a conservative Associate Justice (Blackmun), with the support of two additional conservative Justices (Burger and Stewart), three liberal Justices (Douglas, Brennan, and Marshall), and one liberal Justice (Powell) appointed by a Republican president. It is also important to note, the two dissenting Justices (White and Rehnquist), were split politically as well.

Competing political factions have wrestled for centuries, jockeying to gain leverage to secure a key vote on a contentious social, political, or legal issue. While Republicans are currently receiving the lion’s share of criticism for engaging in political shenanigans ― namely, for refusing to hold a hearing for President Obama’s Supreme Court nominee, Merrick Garland ― Democrats too, have engaged in their fair share of chicanery.

In 1987, Robert Bork, a Reagan nominee, was infamously rejected by a Democratic controlled Senate. Douglas Ginsburg was nominated after Bork was rejected, but ultimately withdrew from consideration after increased scrutiny over his admitted use of marijuana as a college student and professor at Harvard University. The irony, especially given the legalization of recreational marijuana use in many states today, is laughable. Pro-marijuana legislation, by the way, championed by none other than the Democratic party.

Since then, Republicans have been emboldened to elect an executive who will nominate conservative judges, who interpret the Constitution more in-line with their self-professed values. Those values include the protection of the right to bear arms (with the exception of minorities who legally bear arms); the protection of life (with a curious caveat of capital crimes and/or a conflict with the right to bear arms); and the protection of religious freedoms (with the exception of non-Christians).

The question of impartiality, especially after a number of public statements made by various Trump nominees that suggest an overt political preference, raises legitimate concerns over a potential erosion of the court. Keep in mind, once confirmed, appointees serve for life. Imagine allowing a person who is ethically malleable, with questionable judgment and divisive partisan views, to serve on the bench for the next 25-40 years.

Can the country truly afford another Roy Moore?

Until the Special Counsel’s investigation is brought to a close, judicial appointments should be placed on moratorium. The American people must be assured that President Trump did not engage in collusion with a foreign adversary, nor attempt to obstruct justice, before considering any of his potential lifelong appointments. The stakes are simply too high.

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