Trump’s New SCOTUS Shortlist is a Death Blow to Church/State Separation

Yesterday, in a desperate attempt to draw attention away from all his other problems, Donald Trump issued a list of 20 more possible Supreme Court nominees for a second term, reminding his base that they need to keep him in power if they want an ultra-conservative judiciary. Ignore all the other ways I’m screwing up the world; just think of the judges.

The list was notable for including GOP Senators Tom Cotton, Ted Cruz, and Josh Hawley, all opponents of church/state separation and strong supporters of Christian Nationalism. Cotton quickly tweeted “It’s time for Roe v. Wade to go” after the announcement, making it clear he would use the Court to advance a conservative agenda — legal precedent and impartiality be damned. Hawley said he wasn’t interested in a court appointment because he wanted to remain senator, though that could just be an attempt at being politically humble.

Another notable name on the list was Judge Allison Rushing, who was specifically called out by a coalition of atheist groups in 2019, before her confirmation to the bench, for “reverse-engineer[ing] results that privilege religion and violate the Constitution.”

Lambda Legal’s Legal Director and Chief Strategy Officer Sharon McGowan noted that many of the names are known to be hostile to LGBTQ rights:

This troubling list includes some of the most anti-LGBTQ activists sitting on the bench today, including Fifth Circuit Court of Appeals Judges Kyle Duncan and James Ho, as well as Ninth Circuit Court of Appeals Judge Lawrence Van Dyke, who was deemed “not qualified” by the American Bar Association due to specific concerns about his ability to treat LGBTQ litigants fairly. Other nominees include elected officials, judges and attorneys whose careers have been marked by a hostility to civil rights, particularly those of the LGBTQ community. In sum, the number of nominees on this list whose records are replete with anti-LGBTQ bias is both staggering and terrifying.

President Trump’s unveiling of a list of extremists and ideologues as potential Supreme Court nominees should worry all who believe in the importance of a fair-minded judiciary. The impact that another anti-LGBTQ nominee could have on the Supreme Court would be catastrophic. For over three years, this administration has pulled out all of the stops in its attempt to weaponize our federal courts in service of a dangerous right-wing agenda and at the expense of true justice and equal rights for all. It is up to us to speak out against this assault on our system of justice, and be active participants rather than mere spectators in our democracy. We cannot count on the courts to protect us if we do not protect our courts.

BuzzFeed also noted a couple of names left off the list, for whatever reason:

A few names were notably missing from the list, including DC Circuit Judge Neomi Rao, who was a top Trump administration official overseeing the rollback of federal regulations before she was confirmed in March 2019, and Judge Justin Walker, who will join the DC Circuit this fall after just a year as a district judge in Kentucky and whose swift rise in the conservative legal world — he’s only 38 years old — has been backed by McConnell.

There’s nothing that says Trump can’t just add them to the list later on. (Brett Kavanaugh wasn’t on Trump’s original list in 2016.)

Needless to say, replacing Ruth Bader Ginsburg or Stephen Breyer with any of these right-wing extremists would further solidify the conservative bent of the Court. Chief Justice John Roberts wouldn’t be able to prevent massive social upheavals by flipping sides. It would mark the legal end of abortion rights, LGBTQ rights, and civil rights across the nation — to the point where many people living in red states would effectively be second class citizens.

That’s not just a doomsday hypothesis. It’s literally what Trump is telling his base will happen if they re-elect him and keep the Senate in Republican hands.

Historically, Republicans have cared much more than Democrats about the Supreme Court — to our nation’s peril. Liberals need to give a damn because the issues we tend to fight for, and protest about, are quite literally on the line. Without a fair judiciary, no electoral “blue wave” will make much of a difference since the courts can just overturn laws based on whatever right-wing whims they have. That’s what they’ve been doing in the Trump era already. Anyone sitting out this election because Biden isn’t a perfect candidate is ceding the Courts to the GOP for generations to come. It would be a disaster.

Just to put this out there, Biden should also release a list of potential justices. Or, hell, make a pledge to increase the number of justices on the federal judiciary in order to dilute its current conservative stains. That, too, would be legal. It’s about damn time Democrats took the Courts as seriously as the GOP.

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