Trump’s Shaping of the Federal Courts

Trent Dougherty, March 20, 2018

Trump’s Shaping of the Federal Courts: A blog series by the OEC Law Center #3
Trump’s extreme judicial nominees come fast and furious, while Brown and Portman’s bi-partisan picks for judge remain in neutral  

The judges who sit on our federal courts really matter. Our federal judges play the consequential role of deciding how and if the federal Clean Water Act, Clean Air Act, and other significant federal environmental laws continue to protect us. After a full year in office, President Donald Trump’s biggest success has been his ability to quickly fill vacant federal lifetime judicial posts. Unfortunately he has appointed the most extreme and least qualified nominees he could find. 2018 appears to be more of the same.

During the heated wrangling over the federal government shutdown a couple of weeks ago, the Senate Judiciary Committee held an Executive Business Meeting to consider a whopping 17 federal judicial nominees. This assembly line of potential life-time judges occurred despite concerns that newly seated Senators Doug Jones (D-Ala.) and Tina Smith (D-Minn.) did not have the chance to review the nominees for judges for their own home states, and calls for a new hearing for one of the most controversial nominees, Thomas Farr, from members of the Congressional Black Caucus were ignored.  While the objections to Mr. Farr’s nomination were based on his record of opposing voting rights for blacks and other minorities, a few of his fellow nominees saw opposition from progressive groups for “appalling records” against  LGBTQ rights, reproductive rights, and immigrant rights. What is more, and what has become a pattern with all of the President’s nominees, the environmental record of this latest group of potential lifetime judges was abysmal – especially when it comes to the record of protecting communities suffering environmental injustice. Not surprisingly, all 17 were favorably reported (on mostly party-line) for a vote by the full Senate in the coming days and weeks – including three of President Trump’s judicial nominees that received a “Not Qualified” rating from the American Bar Association.

It is quite safe to say that, to this point, many of President Trump’s nominees have been partisan, and inexperienced. As a result, the future of federal federal courts upholding protections to air, water, and public lands is in jeopardy along with civil and human rights protections. The most curious part of the whole process, however, has been that despite the onslaught of Trump’s filling of the federal judiciary, none of the nominees have been to fill the three vacancies in Ohio’s federal district courts. These federal district courts are the first level trial courts that hear cases like the OEC’s lawsuit to protect the Wayne National Forest from fracking, and the state of Ohio’s battle to penalize Rover Pipeline for its long-list of pollution incidents. If they are so important, you may ask . . .why are these vacancies not getting nominations?

The most plausible answer to this curious question, I believe, is that Ohio’s Senators won’t stand for playing politics with our judicial branch. Since early last year, Senators Brown and Portman worked to take the politics out of this important process. Almost a year ago, they formed a bipartisan advisory commission of legal community leaders from around the state to vet potential judicial candidates, far removed from the usual lobbyist-led process.

In September of 2017, this non-political group of Ohio lawyers brought Senators Brown and Portman a slate of potential nominees, and shortly after that Senators Brown and Portman jointly proposed three potential candidates to President Trump from that slate. Four months later, however, there has been no movement on these candidates.

Specifically, Ohio Senators Brown and Portman proposed Judge McFarland, currently a Court of Appeals judge in Pickaway County, to join the U.S. District Court for the Southern District of Ohio in Dayton; Cuyahoga County Common Pleas Judge Pamela Barker to sit as a federal district court judge in Cleveland; and Sarah Morrison, the administrator and CEO of the Ohio Bureau of Workers’ Compensation, for a Columbus-based federal district court seat.

Admittedly, the environmental background of each of these candidates is a bit limited, and will be reviewed by OEC’s legal team in later blog, and hopefully by the Senate when nominated.

However, the fact that the President has not taken up these bipartisan picked potential nominees suggest that they do not fit the mold of his extreme nominees. The lack of movement on Ohio’s bipartisan candidates over the past six months, while President Trump continues to pick anti-environment and anti-civil rights nominees like the ones this blog has highlighted late last year, is disheartening. We who care about Ohio’s environment and the future of federal environmental protections, need to show our support to Senator Brown, Senator Portman, and their bipartisan process.