by Richard L. Abel
The nation has rightly been consumed by the appointment of Brett Kavanaugh to the Supreme Court. Standing at the apex of the judiciary, that institution occupies a unique position. It alone is known as the Court (in caps), its judges are called Justices (and colloquially referred to as “The Supremes,” a sly allusion to the 1960s Motown hit singers), and its iconic architecture is instantly recognizable. But preoccupation with the Supreme Court should not distract us from the far greater importance of the rest of the federal judiciary. The 118 U.S. District Courts hear over 350,000 cases a year; the 12 Circuits of the U.S. Court of Appeals hear 60,000; by contrast, the Supreme Court hears oral argument in fewer than a hundred. Flush with their success in installing Kavanaugh, President Trump and Senator McConnell have vowed to pack the lower courts as well. The Senate has already confirmed 29 of Trump’s Appeals Court nominees (more than those of any president) and 53 of his District Court nominees. District Courts have 106 vacancies and Appeals Courts have 11. If Republicans fill all those positions, they will politicize the entire judiciary and fatally compromise the separation of powers on which this nation is founded.
Analyzing more than 500,000 federal criminal defendants, two Harvard Law School researchers exposed the differences in sentencing patterns by party affiliation. Judges appointed by Republican presidents (compared to Democratic appointees) sentenced Blacks to three more months than non-Blacks and women to two less months than men. I conducted a similar analysis of hundreds of national security cases since 9/11. Republican appointees were significantly less likely than Democratic appointees to grant habeas corpus petitions by Guantanamo detainees, rule favorably in civil damages actions brought by victims of the U.S. “war on terror,” protect the civil liberties of Muslims and demonstrators, and question electronic surveillance by the National Security Agency.
Judicial rhetoric displayed a similar divide. Justice Scalia pontificated without any evidence that merely allowing habeas hearings would “almost certainly cause more Americans to be killed.” On the Fourth Circuit, Judge Wilkinson made the startling assertion that Americans’ “paramount right” was not their liberty but rather the commander-in-chief’s unlimited power. His colleague, Judge Williamson, luridly warned that terrorists “aim to murder scores of thousands of civilians” while falsely claiming that “the economy was severely damaged” by the 9/11 attacks—rather than by the misguided trillion-dollar war President Bush launched against Iraq. The Republican appointees dominating the D.C. Circuit (including Kavanaugh) undermined the Supreme Court’s Boumediene decision by jettisoning the deference owed trial judges as fact finders and creating a novel presumption of the truth of the government’s evidence opposing habeas petitions. Republican appointees belittled the injuries of “war on terror” victims as the “inevitable” tragedies of war, where “risk-taking is the rule” (disregarding the fact that civilians do not choose to take risks), and created a new doctrine of “battle-field preemption.”
Trump has repeatedly displayed his ignorance of and contempt for the rule of law. He prejudged the guilt of accused (who must be presumed innocent). He urged that those who exercised their constitutional right of free speech by burning the flag should be jailed and stripped of their citizenship. He denounced judges who blocked his Muslim ban and disparaged the “Mexican” judge who ruled against Trump University. He will nominate judges who will follow the party line, and Republican Senators have shown their eagerness to confirm anyone he nominates.
More than a century ago Mr. Dooley observed that “the Supreme Coort follows the iliction returns.” So do the District Courts and Court of Appeals. Americans must go to the polls in November and vote for the rule of law.
Richard Abel is Connell Distinguished Professor of Law Emeritus and Distinguished Research Professor at UCLA and author of “Law’s Wars: The Fate of the Rule of Law in the US ‘War on Terror’” and “Law’s Trials: the Performance of Legal Institutions in the US ‘War on Terror,’” both from Cambridge University Press.