Federal judges are political appointees, so in federal courts some ideological lean has to be expected. But when ambitious Trump appointees cast eyes on bigger prizes, the rule of law goes completely out the window.
We saw that with rogue district court judge Aileen Cannon in Florida, who has sucked up to Trump in her handling of the Mar-a-Lago classified documents case. She’s already been reversed on appeal in that case, at which point at least two appellate judges thought the case should go to someone else, and her dismissal of the indictment seems certain to be reversed on appeal, too.
Cannon, 43, apparently doesn’t mind having a reputation as a bad judge, if pandering to a defendant gets her kicked upstairs. She’s reportedly being considered for attorney general in a second Trump administration, and a Supreme Court appointment might not be out of the question.
Both these positions require Senate confirmation. She could get it. The odds favor the GOP winning Senate control in the 2024 election. Democrats currently have a 51-49 edge, but they’ll lose a seat in West Virginia for certain, and likely another one in Montana. To keep a 51-seat majority, they have to pick up an independent in Nebraska and defeat Ted Cruz in Texas.
If one of those races goes their way, they’d also have to win the White House to prevail in Senate votes; but in that case, any concern about Trump appointments would be moot. Might a couple of GOP senators voting against Trump appointees? Don’t count on it. If Trump wins the 2024 election, his grip on the Republican Party will be so strong it’s unlikely any GOP senator will stand in the way of any appointments he wishes to make, no matter how awful.
We saw something very close to that happen with his three prior Supreme Court appointments, where so-called “moderate” GOP senators (think Susan Collins) went, “Oh, they’ll be okay, they said they won’t overrule Roe v. Wade.” Thus, if Trump wins in 2024, Attorney General Cannon or Justice Cannon becomes a real possibility. If he doesn’t elevate her, it’ll be because he’s got someone even worse.
The Fifth Circuit is the federal appellate bench’s “problem child.” It’s where rightwing extremists go to rewrite American law in ways legal scholars and people who believe in a non-political judiciary don’t like. The rulings emanating from that court are the talk of the town. And three of Trump’s appointees to the Fifth Circuit — James Ho, Andrew Oldham, and Kyle Duncan — are stretching the law’s boundaries to audition for the Supreme Court.
How can we tell? By their highly partisan, precedent-defying, legal gymnastics in a recent ruling that mail ballots must be received, not postmarked, by Election Day to count. Many states “accept mail-in ballots that were mailed by Election Day, but arrive sometime after it. No court has ever questioned this practice,” and it’s “squarely within the purview of states’ election authority.”
Then these three meddlers came along and questioned it. Georgetown law professor Steve Vladeck called their opinion “nuts on its face.” UCLA election law expert Rick Hasen called it “bonkers.” Legal reporter Chris Geidner called it “the logical equivalent of Swiss cheese,” a ruling written “around all of the laws that allow the receipt of ballots before Election Day, the federal laws that allow the receipt of ballots after Election Day, and all [the] other practices that could contradict with such a strict definition of Election Day.’”
When impartial legal experts say judges’ logic is full of holes, I believe them, and you should too. Mother Jones said, “Observers predicted that even this far-right panel wouldn’t throw out decades of unquestioned election law. And yet, on Friday evening, all three judges did just that” (read story here). Why? What explains this?
Mother Jones thinks, “All three have appeared [to] use their position as part of an ongoing audition for an appointment to the US Supreme Court.” I agree. For people who know the law, and follow the antics of Trump appointees to the courts, it falls into place and no other explanation makes sense.
The October 2024 issue of The Atlantic magazine has an article titled, “The End of Judicial Independence,” describing the collapse of Poland’s judicial independence as a warning to American voters. The subtitle reads, “One of America’s greatest achievements could disappear overnight.” The author is Anne Applebaum (profile here), and anything she writes is worth reading. I can’t link to the article because it’s paywalled; and in any case, the people who most need to read it aren’t readers of this blog. Her concluding words are:
“Americans today have no experience living with a federal judiciary whose rulings are based on allegiance to a particular politician or political party. Perhaps this has lulled us into a comforting it-can’t-happen-here quiescence. But as [Harvard Law Prof. Laurence] Tribe has said, we face the real possibility of ‘an imperial judiciary walking arm in arm with an imperial executive’: a new political order, one in which the laws and norms that have insulated America from dictatorship slowly degrade.”
There is real cause for alarm here, because courts are the last bastion of American citizens’ freedom. If that bulwark is gone, we’ll have no enforceable rights. And as Cannon and those three Fifth Circuit judges demonstrate, there will always be ambition-driven obsequious quislings willing to do anything it takes to ingratiate themselves to a strongman. A re-elected President Trump will fill our highest courts with minions of that stripe, not wise and competent judges, confident they’ll carry out his will whatever it is. And they will.