Federal Courts and Nominations

While COVID-19 Spreads, Trump and McConnell Prioritize Packing the Courts

The United States joins the rest of the world in struggling through a public health emergency, the likes of which few alive have ever seen. Not since 1918 has a pandemic taxed our health care systems, and stressed our economies, in such extraordinary ways. One would expect key leaders such as the President of the United States and the Senate Majority leader to focus like a laser on protecting the American people. Yet, President Donald Trump and Majority Leader Mitch McConnell have decided to focus, instead, on packing our federal courts with dangerous and unqualified conservative ideologues.

Let’s look back a few months. China officially reported the first cluster of COVID-19 cases in Wuhan on December 31st, 2019.  Since then, the situation has been dire all over the world, with the United States experiencing particularly devastating effects, especially considering our country’s resources. In the United States alone, there have been over 746,000 total cases and over 39,000 deaths, though it is likely these numbers are lower than the actual number of affected people in the U.S. due to a shortage of tests. Despite claims to the contrary, intelligence officials were aware of the pandemic as early as November of last year, and raised warnings in January and into early February at the latest and urged the Federal government to take action to impede the spread of COVID-19. However, in a stunning display of either partisanship or merely horrendous judgment, President Trump and his supporters in Congress chose to downplay the possible danger posed to the United States just a day after the first cases were detected in Washington state and delayed taking action for months while the virus spread at a rapid rate, overwhelming the health care system of multiple states and cities.

Even with the reports in the first months of the year, and former health officials calling for specific public health interventions in the media, the President in an interview with Sean Hannity during the Super BowlTM falsely suggested that his eventual action, the inept banning of non-citizens who had been to China, had essentially stopped the spread of the virus. In reality, the travel restriction seems to have stoked racial tensions, as Asian American citizens began to face an increased number of animus-based attacks. The President and his staff spent the rest of February assuring the American people that the risk to Americans was small, that it was “totally under control,” and that the number of cases “within a couple of days [of February 26] is going to be down to close to zero” – that is, until the stock market began to take heavy losses. Even as late as March 9th, the President downplayed the severity of COVID-19. It wasn’t until March 13th that the President finally declared a national emergency, and March 18th, when he signed a relief bill. The next day the Senate announced an economic stimulus package, and on the 27th, President Trump signed the CARES Act.

Though the President finally decided to act, it has proved pitifully inadequate. Even as the number of infected continues to skyrocket, COVID-19 related deaths are on the rise, and 22 million Americans have filed for unemployment, the President still refuses to accept responsibility for the inadequacy of his response by casting blame on the World Health Organization, the Obama Administration, and even the Center for Disease Control  (which is part of the Executive Branch) for the severity of the pandemic.

The deficiency in the U.S. pandemic response is especially apparent when compared to the vigor with which the President has continued to pursue the confirmation of his judicial nominees, a focal point of his presidency. Since January 8th, the Senate Judiciary Committee held three nominations’ hearings, and the Senate confirmed nine nominees to lifetime appointments on the bench. Of these, two of the hearings and seven of the confirmations occurred in February, after the intelligence briefings warning of COVID-19. The hearing in March occurred only nine days before the President declared a national state of emergency. The day of the President’s declaration, while the number of confirmed cases of the virus was under 2,000 and Speaker Pelosi was working with the White House to reach an agreement on an aid package, Senate Majority Leader Mitch McConnell and Justice Kavanaugh had traveled to Kentucky to attend the ceremony commemorating the recently confirmed District Court nominee, Justin Walker’s, swearing-in ceremony.

On April 3rd, President Trump indicated that he intended to elevate this same judge, Justin Walker—rated “Not Qualified” by the ABA with strong political views against the Affordable Care Act—to the U.S. Court of Appeals for the D.C. Circuit at a time where state and local governments have had to take the lead in battling the pandemic due to lack of federal leadership and our health care system is in significant jeopardy.

As recently as April 15th, to attempt to push through confirmation of even more judges, the President indicated his intent to forcibly adjourn Congress, although such action would rest on a profound misreading and distortion of the authority granted by the text and history of Article II, Section 3 of the Constitution. This provision allows the President to convene Congress in specific, extraordinary circumstances and adjourn both chambers when they can’t agree on an appropriate time, which is not the case here. Although the judicial nominations process is essential to our constitutional system, the nation is facing a pandemic. As CAC President Elizabeth Wydra has said, “President Trump and Senator McConnell should take a break from their efforts to radically remake the courts in order to protect the American people from disease and economic disaster.”

The President of the United States actively ignored and downplayed a looming pandemic. At the same time, the Senate continued to confirm judicial nominations until late February, well after the Administration had been briefed on the pandemic, and the first case had been confirmed in the United States. Now, as the country suffers and concentrates on fighting a pandemic, the President is attempting to place his ideologues on the federal bench where they can impact the rights of us all for a lifetime, rather than nominate qualified people to administrative vacancies that can help fight the novel coronavirus. President Trump must cease to prioritize power over people, and act in the best interest of our nation and the world to control the spread of COVID-19 before this catastrophe worsens.

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