This is an update. The original blog was published November 20, 2017.
One of the most important powers of the president is nominating federal judges. These judges hold lifetime appointments and decide on legal rights and principles that are critical to protecting our health, rights, and communities.
President Trump inherited 150 judicial vacancies upon taking office. That means he could shape the landscape of the courts for GENERATIONS to come — regardless of how long he holds office.
The federal courts have been the people's last — and sometimes only — line of defense against damaging and unconstitutional attacks on our basic rights, like a person’s fundamental right to vote, to decide whether and when to become a parent, and to be free from discrimination based on their gender, their sexual orientation, their immigration status, their race, or their religious beliefs.
The federal courts have been and will be our LAST line of defense against the Trump administration’s attacks on our health and rights.
That includes attacks on the Affordable Care Act and access to health care, abortion access and birth control, the rights of immigrants, and the environment.
The courts have also defined critical legal rights for women — including:
The right to privacy, which led to the historic legalization of birth control
The constitutional right to access safe, legal abortion
The 2016 landmark ruling in Whole Woman’s v. Hellerstedt, which struck down unconstitutional abortion restrictions in Texas
Equal protection under the 14th Amendment
Anti-discrimination protections in the workplace and in education such as Title VII and Title IX
Protections for consumer health and safety
The ability to seek redress for violations of individual rights.
Why are There So Many Judicial Vacancies?
When President Trump took office, there were 109 judicial vacancies that were left unfilled under President Obama due to Republican obstruction. Many of Obama’s nominees never even received a nomination hearing because Republican senators refused to return their blue slips (creating a procedural roadblock) which prevented an actual confirmation vote from ever taking place This includes the unprecedented obstruction of Obama’s Supreme Court nominee, Judge Merrick Garland. (Y’all remember that #DoYourJob campaign?)
We saw what happened when Trump was able to have his pick of a Supreme Court Justice replacement: We got Justices Neil Gorsuch and Brett Kavanaugh.
During his time as a judge on the Tenth Circuit Court of Appeals, Justice Gorsuch went to extraordinary lengths to try to block people from care at Planned Parenthood. He ruled in favor of allowing bosses the ability to deny their employees birth control coverage, and he has an alarming record on reproductive and LGBTQ rights. In addition, senators confirmed Brett Kavanaugh in spite of multiple allegations of sexual assault against him — ignoring women and survivors in order to rush another anti-abortion and anti-women’s health jurist onto the Supreme Court.
If Kavanaugh and Gorsuch indicate the types of judges that President Trump wants to give lifetime appointments, we’re in big trouble.
Since the beginning of Trump’s presidency, the Senate has confirmed 29 nominees to the circuit courts of appeals — 83 percent of them drawn from the ranks of the conservative Federalist Society. All current judicial nominations will expire at the end of the 115th Congress.
NOMINATED, Matthew Kacsmaryk, U.S. District Court for the Northern District of Texas
Staunch critic of Roe v. Wade decision and the constitutional right to access safe, legal abortion
Wants to make it easier to restrict LGBTQ rights and deny people access to reproductive health under the guise of “religious liberty”
Kacsmaryk has belittled the legal foundation of Roe v. Wade, argued that the legal right to abortion has weakened the institution of marriage, and disparaged the Supreme Court ruling in Obergefell v. Hodges — the case that made marriage equality the law of the land. As an attorney for religiously-affiliated institutions that oppose the Affordable Care Act’s requirement that most health insurance plans cover birth control with no out-of-pocket costs, Kacsmaryk also advanced arguments that falsely equate certain methods of contraception to abortion.
NOMINATED, Jonathan Kobes: U.S. Court of Appeals for the Eighth Circuit
Rated “not qualified” by the American Bar Association
Former board member of an agency that discriminates against LGBTQ families
One of six Trump nominees rated unqualified by the ABA, Kobes has no experience as a judge — but once represented a fake women’s health center in South Dakota. In that role he defended a state law requiring physicians to make deceptive statements to women seeking abortion care, including providing misinformation about the risk of suicide.
NOMINATED, Michael Truncale, U.S. District Court for the Eastern District of Texas
“I don’t think we should be funding Planned Parenthood. I’d cut them off.” — Michael Truncale
Truncale has called for “defunding” Planned Parenthood, boasted about marching in an anti-abortion rally, and denounced former Texas State Senator Wendy Davis — who in 2013 undertook a 13-hour filibuster to delay a vote on an extreme anti-abortion bill. In notes for a speech, Truncale wrote: “Wendy Davis’ Claim to fame – kills little girls,” and said “she wants to kill babies five months into term.”
NOMINATED, Wendy Vitter, U.S. District Court for the Eastern District of Louisiana
Moderated anti-abortion panels and spoke at anti-abortion rallies
Spread widely discredited arguments and misinformation about abortion and birth control
Vitter has no experience as a judge, and only two days of experience in a federal courtroom: a two-day trial that happened a quarter-century ago. But she has a long record of promoting fake science in public appearances — falsely linking breast cancer to abortion (guess what? There’s no link) and the idea that people who take birth control are more likely to die violent deaths (wow!). And she praised Texas for enacting medically spurious abortion restrictions that the Supreme Court later struck down — crediting the state with “making great strides in making it very difficult to get abortions.”
CONFIRMED, Kyle Duncan: U.S. Court of Appeals for the Fifth Circuit in Texas
Like the Trump administration’s many other anti-reproductive health nominees, Kyle Duncan is no different. He vigorously fought against the contraceptive mandate in the Affordable Care Act — which benefited over 62 million women — and served as lead counsel in Burwell v. Hobby Lobby. Duncan also co-authored amicus briefs for Zubik v. Burwell — another case challenging the ACA’s contraceptive mandate — and Whole Woman’s Health v. Hellerstedt, a landmark case that ruled two abortion restrictions unconstitutional.
But his extremism doesn’t end there: Duncan has long been on the record as an opponent of same-sex marriage and transgender students’ rights. He represented Gloucester County, Virginia, in its fight to deny Gavin Grimm’s right to use the school bathroom that aligns with his gender identity and even went as far as calling the discriminatory policy “commonsense.” Duncan's long record of working against reproductive rights has earned him the support of anti-reproductive health groups such as Americans United for Life, Susan B. Anthony List, Concerned Women for America, and the Family Research Council.
Duncan's extreme, ideological agenda is dangerous for our communities, our health, and our rights. His confirmation threatens to send us back in time.
CONFIRMED, Amy Coney Barrett: U.S. Court of Appeals for the Seventh Circuit
Amy Coney Barrett has been very active and vocal on her opposition to reproductive rights. In addition to serving as a member of the Notre Dame’s Faculty for Life Group from 2010 to 2016, Barrett has held critical views of Roe v. Wade and even said that judges should not follow the law if it clashes with their religious beliefs.
Coney Barrett opposes the ACA’s birth control mandate and believes employers should have a say in women’s personal health care decisions. And it gets scarier: Barrett’s only legal experience is when she served as counsel for George W. Bush during Bush v. Gore — which many legal experts believe was a problematic case. Long story short, a judicial nominee who does not trust women is dangerous to the health care of people across this country.
CONFIRMED: Leonard Steven Grasz, U.S. Court of Appeals for the Eighth Circuit
Leonard Steven Grasz is no friend to women or the LGBTQ community. In fact, he is so extreme that he has been deemed unqualified by the American Bar Association. No wonder his nomination was withdrawn from the White House after heavy pressure. As an active opponent of reproductive rights, Grasz has likened the rights of a fetus to that of the civil rights of people of color in America. Grasz’s writings have supported so-called fetal personhood to expand the legal rights of the fetus, and he has even used these arguments to restrict access to birth control. Grasz is a member of the board of directors of the Nebraska Family Alliance — an anti-women’s health group that extensively advocates against reproductive rights and supports so-called “conversion therapy.” His record is completely outrageous.
NOMINATION WITHDRAWN: Jeff Mateer, U.S. District Court for the Eastern District of Texas
The majority of Trump’s nominees have been ultra conservative and extreme, but Jeff Mateer truly takes the cake. Up until last year, Mateer worked as general counsel for a Texas Christian advocacy group called First Liberty Institute — an organization that has protected anti-abortion groups disguised as health care providers.
And it doesn’t stop there: Mateer compared the ACA’s birth control mandate to the Hitler regime, called the Hobby Lobby Supreme Court decision a “landmark win for the freedom of conscience rights of every American,” and compared same-sex marriage to bestiality. He even stated that a transgender girl’s right to use the bathroom of her gender “really shows you how Satan’s plan is working.” No one with a record of that kind of inflammatory, offensive rhetoric should be even considered to serve on a federal bench.
Republicans Have Eliminated Blue Slips
In an attempt to jam through as many anti-women’s health, anti-LGBTQ, and anti-voting rights judges as possible, Republicans have discarded the 100-year-old, bipartisan blue slip tradition. Getting rid of this process has all but ended cooperation between the executive and legislative branches on judicial nominees and eliminated a major incentive for the White House to name judges with mainstream views.
What are Blue Slips?
Blue slips allow senators who represent the same state as the nominee to have a say in the confirmation process, regardless of their party and the party of the president. Senators can give their approval of a nominee by returning a blue slip, or they can reject a nominee by holding onto the blue slip. If either of the nominee’s home state senator doesn’t return the blue slip, the nominee won’t get a hearing.
No judicial nominee has been confirmed without a blue slip from both senators of their state in nearly 30 years, and fewer than five times in the last 100 years. Not a single Obama nominee received even a hearing in the Judiciary Committee, let alone a floor vote, without both blue slips having been returned.
Without the ‘blue slip,’ we’re going to have more judges who threaten fundamental American values and our fundamental rights.
What’s at Stake Now?
Senators willing to greenlight Trump’s agenda have been thrilled to move forward extreme, younger nominees (remember, these are lifetime appointments!) who pose a threat to our health, rights, and communities.
Currently, the U.S. Court of Appeals for the Fifth Circuit and Tenth Circuit are weighing whether to allow Louisiana and Kansas, respectively, to block access to care at Planned Parenthood through Medicaid. There are also numerous cases pending in the Eighth Circuit challenging targeted regulations of abortion providers.
With 13 nominations pending on circuit courts, our rights are at risk in these and many other states. We must not allow access to care to depend on your zip code.
Because lower federal courts exercise enormous power in deciding cases involving our health, rights, and communities, judges appointed to these courts must demonstrate a commitment to safeguarding people’s fundamental rights and freedoms — and reflecting the values of equality and justice. Planned Parenthood will continue to fight against the confirmation of nominees that have a demonstrated record of hostility against reproductive health and rights.