Senate Majority Leader Mitch McConnell (R-Kentucky) and President Donald Trump have exhibited a unique determination to appoint young, far right judges to the federal bench over the past three and a half years.
At a time when the COVID-19 pandemic has demonstrated the importance of decisive federal action, the Senate Judiciary Committee is poised to consider 27 new lifetime appointments — all of whom are ideologically committed to shrinking the size of the federal government.
The president’s judicial appointments are young — the average age is 48 — meaning they also have the potential to constrain federal government action for decades to come.
McConnell made it clear that when the Senate reconvenes in May — in the midst of a pandemic — his number one priority will be appointing conservative judges.
In a recent interview with conservative Hugh Hewitt, McConnell elaborated, “My motto for the year is ‘leave no vacancy behind.’ That hasn’t changed. The pandemic will not prevent us from achieving that goal.”
Apparently not content with filling only existing vacancies, McConnell has also allegedly been encouraging sitting judges to retire. After Judge Thomas Griffith’s retirement from the powerful Court of Appeals for the District of Columbia Circuit created an opportunity for McConnell protégé Justin Walker to fill the seat, watchdog group Demand Justice requested an investigation into how the Senate majority leader is incentivizing judges to retire. On May 1, a D.C. Circuit Court judge forwarded Demand Justice’s complaint to Chief Justice John Roberts.
This single-minded focus on judicial appointments seems absurd during a global pandemic with more than 1.1 million confirmed cases and more than 69,000 deaths in the U.S.
States still lack basic supplies like sufficient personal protective equipment, sedative medications for those on ventilators, dialysis equipment and testing capacity.
The economic consequences of the crisis are severe. In the last six weeks, 30 million Americans have filed for unemployment. States, cities and hospitals are all in danger of going bankrupt.
In spite of the obvious need for federal leadership in the face of such a crisis, McConnell stated recently that he wants to “push the pause button” on further federal aid packages to the states and individuals.
Under intense political pressure, he recently conceded that he might consider another aid package to states, but only if other Republican priorities — like new liability protections for big businesses — were included.
However, both McConnell’s reluctance to consider additional federal aid packages and his insistence on prioritizing judicial appointments make sense in the context of his desire to shrink the federal government.
Not only does his control over the Senate mean that states are unlikely to get all the resources they need, but his retooling of the judiciary could be a bulwark against future expansion of government programs.
Now, the reactionary judiciary put in place by McConnell and Trump threatens the COVID-19 recovery.
During Trump’s time in office, the president and the Senate have sought to remake the federal judiciary. Trump has appointed one in four circuit court judges and has filled more federal judgeships during his first term than any president since President Jimmy Carter, whose term ended in 1981.
While some Christian voters may be focused on issues like abortion or gay marriage, the Trump administration has made it a top priority to appoint judges who want to shrink the administrative state.
Some of Trump’s more reactionary picks — like Andrew (“Andy”) Oldham, who now sits on the 5th Circuit Court of Appeals — have argued that the administrative state as it currently exists is fundamentally illegitimate and unconstitutional.
To be clear, the administrative state encompasses most of the bureaucratic services that citizens rely on: Environmental Protection Agency regulations regarding clean air and water; Food and Drug Administration (FDA) regulations regarding the safety of medical devices; the Security and Exchange Commission’s rules that help underpin the modern stock market; the administration of the Social Security and Medicare systems; and Department of Labor rules about fair employment practices are all vital parts of the administrative state.
If taken at face value, judicial opinions challenging the constitutionality of the administrative state have the potential to place severe restrictions on what public health bureaucracies like the Centers for Disease Control and Prevention’s (CDC), National Institutes of Health and the FDA can accomplish.
The current pandemic highlights the danger of ignoring the importance of the administrative state. The federal response to the current crisis has been undermined by the Trump administration’s previous attacks on the bureaucracy.
For example, the Trump administration proposed a 9 percent cut to the CDC budget for fiscal year 2021, fired two-thirds of CDC staffers operating inside China over the course of the administration, and in 2017, left nearly 700 CDC positions vacant due to a hiring freeze.
During the current crisis, not only did a lack of human resources leave the CDC unable to monitor emerging threats from China, but contamination in CDC labs rendered the first crucial rounds of COVID-19 testing ineffective.
COVID-19 has put into stark relief other gaps in government services. In the middle of a global pandemic, an estimated 9.2 million workers have lost their employer-sponsored health insurance. Between 24.7 million and 162.8 million people in the U.S. do not have high-speed internet access at home just as school and work are moving online.
The disproportionate death rates due to COVID-19 for Black Americans in cities such as Chicago, St. Louis and New Orleans are a devastating demonstration of the social and economic inequality that persists in these cities.
Harvard University compiled a panel of experts recently and the resulting report estimated the U.S. would need to be able to test at least 5 million individuals a day, hire a minimum of 100,000 contact tracers, train a Medical Reserve Corps that would be capable of filling in for sick doctors and nurses, provide financial support and job protection for all essential workers required to self-quarantine and create a federal Pandemic Testing Board.
The federal government would have to significantly increase the reach of the federal bureaucracy to follow the recommendations of the Harvard report, let alone address the more systematic social and economic concerns exposed by COVID-19.
Instead, the Trump administration remains hostile to expanding access to health care. In the midst of a pandemic, the Senate will have confirmation hearings for Justin Walker and Cory Wilson for seats on the D.C. Circuit Court and 5th Circuit Court, respectively. Both men are vocally opposed to the Affordable Care Act (ACA). If confirmed, they would join other Trump appointments to the appellate courts, like John Bush, who have expressed their opposition to expanding access to health care.
Meanwhile, the administration is in the midst of arguing that the Supreme Court should find the entire ACA unconstitutional. The pandemic has not deterred their plans to kill the ACA.
The current administration’s inept handling of the COVID-19 pandemic has led Republicans to apparently fear that they stand to lose both the presidency and the Senate in 2020.
However, Trump’s judicial appointments could easily block progressive policy goals aimed at addressing the lack of affordable health care, environmental degradation and economic inequality for decades to come.
Dismantling the administrative state would fundamentally alter the way the government functions, severely compromise its response to COVID-19 and potentially stymie the will of democratically elected majorities for decades to come.