Back in 2016, when a lot of otherwise decent people pulled the lever to elect Donald Trump president, they claimed to have done it solely for the judges. By the same token, a good number of then–“Never Trumpers” have reverted to Team Trump, again, because of the judges. Members of the Trump administration, like his former White House Counsel Don McGahn, who have showed tiny filaments of courage in standing up to him for the rule of law, nevertheless silently allow Trump to fillet the Constitution and American prestige and influence abroad, and why? Because of the judges. If you’ve stuck with Trump for the judges until now, you are currently playing the dangerous game of “How Many More Judges Can They Ram Through Before Democracy Breaks?” The theory is that teeing up the murder of Kurdish allies and inviting foreign election interference is all worth it, because of the judges.
It’s not news that Trump has made packing the federal courts with the youngest, most radical, least qualified jurists ever seen a priority. Nor is it news that this project has been singularly successful because it was contracted out to effective outside groups, and because Senate majority leader Mitch McConnell now cares about no other. Last week, the Senate advanced the nomination for a lifetime tenured position of a 37-year-old associate professor, who had been rated “not qualified” by the American Bar Association. Justin Walker, the prospective judge in question, has never tried a case. He’s never been co-counsel in a case. His principal qualification for a federal district court judgeship seems to be his important legal work spent “conducting over 70 interviews in which he challenged the account of Christine Blasey Ford.” He’s a TV judge whom Mitch McConnell somehow touted as “unquestionably the most outstanding nomination that I’ve ever recommended to Presidents to serve on the bench in Kentucky.” Despite his lack of any judicial qualifications and the once-rare not-qualified ABA rating, every Republican on the Judiciary Committee voted to advance his nomination while Democrats broke against him. As Jennifer Bendery noted here, “in his entire eight years in the White House, President Barack Obama didn’t nominate anyone to be a lifetime federal judge who earned a ‘not qualified’ ABA rating.” Walker was Trump’s fourth. And on Thursday, the Senate is poised to vote on the fifth, Sarah Pitlyk, nominated to a seat on the U.S. District Court for the Eastern District of Missouri.
Like Walker, Pitlyk hasn’t generated much attention, despite the fact that she too has no trial experience whatsoever, which is what earned her the ABA’s not-qualified rating. “Ms. Pitlyk has never tried a case as lead or co-counsel, whether civil or criminal. She has never examined a witness,” the ABA said in a letter to the Senate Judiciary Committee. The absence of any work in litigation was once disqualifying for putative nominees, even in the eyes of some Republicans (you may recall that Sen. John Kennedy (R-Louisiana) was once bothered by such trivial matters). Now the fact of no experience is used by defenders to say that others with thin records have been confirmed so why not? We have now reached a newer threshold, in which Senate Republicans object not to a nominee’s lack of judicial experience, but only to their failure to hew perfectly to the Federalist Society template for judicial acceptability. The no-litmus-test party has become unwilling to support anyone who departs from its new litmus test. Halil Suleyman “Sul” Ozerden is thus not deemed sufficiently captive to be confirmed to the 5th U.S. Circuit Court of Appeals.
Like many nominees who have been advanced before her, Pitlyk’s primary legal work has consisted of attacks on abortion rights, tempered by attacks on constitutionally protected contraception rights, leavened by other attacks on abortion, and supported with her work defending David Daleiden—the author of a vicious smear campaign against Planned Parenthood, based on fake videos of Planned Parenthood officials appearing to negotiate the sale of aborted fetal body parts. These are all claims that were later debunked by a Republican-led House Oversight Committee. Criminal charges were brought against Daleiden. Yet Pitlyk’s biography proudly notes that she was “part of a team defending undercover journalists against civil lawsuits and criminal charges resulting from an investigation of illegal fetal tissue trafficking.” In last year’s Box v. Planned Parenthood, Pitlyk made the transparently false argument in an amicus brief that abortion and birth control are based in the eugenics movement and urged that: “The eugenic origins of the birth-control movement—the progenitor of the abortion rights movement—are well-established” and “Given its strategic location of abortion clinics near minority neighborhoods and its blatant marketing of abortion to the minority community, the abortion industry’s claims to bear no responsibility for the staggering numbers of minority abortions beggars belief.” That claim has been roundly debunked as false.