President Donald J. Trump once again lies in the pit of controversy—this time, for a handful of “not qualified” judicial nominations. If Trump continues to nominate questionable candidates over the course of his presidency, American democracy may experience symptoms of backsliding.
As of November 7th, 2017, four of President Trump’s nominations for federal courts have been declared overall “not qualified” by the American Bar Association. The ABA, an official organization which reviews the qualifications of candidates for lifetime federal judicial positions, does not issue many “not qualified” ratings—especially unanimous ones.
Arguably the most problematic nominee, thirty-six-year-old Brett Talley (nominated for the Middle District of Alabama), was unanimously dubbed “not qualified” without a single abstention. Talley’s controversy lies in that he has never actually tried a case before, and that he failed to mention his wife’s position as a White House attorney when asked about potential conflicts of interest. Trial experience is technically not a prerequisite for serving on a federal district court; however, a lack it is certainly not desirable. Not mentioning his wife’s connection is also concerning as it points to potential dishonesty. Dishonesty contradicts the ideal that federal judges have integrity and act as envoys of the law.
Before discussing how nominees such as Talley may affect democracy as a whole, it is important to evaluate these controversies—as they are not yet extremely abnormal. The number of “not qualified” nominees is not unprecedented. Also, while the ABA claims to be an unbiased organization, conservatives often call it a partisan force which leans liberal. With this being said, President Trump’s percentage of “not qualified” nominees is higher than any other presidents’ on the ABA’s record… both Republican and Democrat. Considering that in less nominations over a shorter period of time, Trump has picked this many “not qualified” candidates, it seems that there is at least a slight abnormality.
The consequence of democratic backsliding as a result of these underqualified picks is undoubtedly long term. If these four judges are confirmed, it will not be the infernal end of American democracy, but this issue cannot be ignored. Due to a striking number of federal appeals court judges reaching senior status (which allows their replacements to be appointed), Trump will be able exercise the president’s control over the judicial branch to its full extent. If Trump does this consistently in the future, nominating wave after wave of candidates, each one with their own handfuls of underqualified or extreme individuals; the handfuls will become piles and the piles will become dunes. Corruption in the judicial branch will be increasingly likely with each new wave.
This poses an issue for democracy because the Judicial Branch serves as a defense mechanism against the employment of authoritarian practices by the executive branch. Turning to political science, Douglas M. Gilber and Kirk A. Radazzo in “Testing the Effects of Independent Judiciaries on the Likelihood of Democratic Backsliding” argue for the importance of judiciaries acting independently to the prevention of democratic backsliding. They argue that these independent judiciaries are neutral and non-partisan political institutions which resolve issues, protect individual rights, and balance out the other branches of government.
A judiciary which is significantly partisan with an undeniable presence of underqualified members will be more likely to turn a blind eye to an executive’s malpractice. Trump’s nominations already embody extreme conservatism, contradicting what Gilber and Radazzo hope for in a resilient judiciary. For example, L. Steven Grasz (nominated for the Court of Appeals for the Eight Circuit), is believed by the ABA to have compromised temperament and extreme conservative bias, shown by his questionable stance on stare decisis—a term referring to the importance of respecting and upholding past judicial decisions.
Furthermore, Robert Lieberman et. al. in their working paper “Trumpism and American Democracy: History, Comparison, and the Predicament of Liberal Democracy in the United States,” touch on the potential dangers of Trump’s populist actions towards institutions such as the judiciary. They note that political institutions (of which one is the judiciary) are endangered by Trump’s populist-driven governance, stating that “Populism is naturally antithetical to established institutions… And it is especially hostile to institutionalized checks and balances” (Lieberman et.al. p.15).
These controversial court nominations are Trump’s populism at work. With the aforementioned sheer number of nominations Trump will be able to make in mind, it is obvious that if Trump continues over the course of his term to nominate candidates like Talley and Grasz, the judiciary’s ability to check and balance the presidency will be mitigated. With each new influx of. This watering-down of the checks and balances systems opens the door for Trump (or a corrupt successor) to aggrandize his own power, suppressing American democracy.
Hopefully, though, Trump’s “not qualified” nominations will remain at four—averting one potential pitfall for the good of democracy.
Over the course of the semester, we have learned without a doubt that a strong, independent judiciary is one of the most important institutions to prevent executive aggrandizement and other forms of democratic erosion. While most of this has been focused on the supreme court of the US and other nations, federal judges can have a large part in this as well. As was pointed out, the nomination of an unqualified federal judge in itself is not extremely unsettling, Trump’s number of unqualified judges nominated in a relatively short amount of time is unorthodox, and can point to a concerning pattern if it continues. These unqualified nominations and the possibility of more like it have multiple ways they could lead to the undermining of the judiciary as an institution, or of American democracy as a whole. First of which being that the appointment of underqualified people to judgeships could lead to a lack of trust in the judiciary by the people, which could be absolutely detrimental to its power, and therefore the potential of more qualified or central judges to reign in questionable actions. There is, of course, also the question of what is causing Donald Trump to nominate these judges if not their qualifications and abilities. If these are not his motivations, it seems evident that the President would be appointing people who are more loyal to him and sympathetic to his policy goals to these positions, and this may be very helpful to him later in his time in office. While the nomination of these judges may not necessarily be the erosion of the American democracy, they can certainly be considered some sort of warning sign, and also have the possibility to make it much easier for the executive to increase his power in the future if he chooses to do so.