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. Currently, there are 145 judicial vacancies — meaning that President Donald Trump 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 on the Affordable Care Act, the Muslim ban, 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 108 judicial vacancies that were left unfilled under President Obama due to Republican obstruction. Many of President Obama’s nominees never even received a hearing because Republican senators refused to return their blue slips (creating a procedural roadblock) and Senate Majority Leader Mitch McConnell wouldn’t hold a floor vote. This includes obstruction of President Obama’s Supreme Court nominee, Judge Merrick Garland. (Y’all remember that #DoYourJob campaign?)
We saw what happened when President Trump was able to have his pick of a Supreme Court Justice replacement: We got Judge Neil Gorsuch.
Justice Gorsuch has gone 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. If Justice Gorsuch is any indication of the types of judges that President Trump is tapping for lifetime appointments, we’re in big trouble.
Donald Trump and Neil Gorsuch.
In 2017, the Senate confirmed a record number of 12 nominees to circuit courts and six to federal district courts. With three years remaining in the Trump administration, there are 149 vacancies in the federal courts.
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 (ACA) — which benefited 62.4 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.
Make no mistake: If Duncan is confirmed, he would advocate for an extreme, ideological agenda that would be dangerous for our communities, our health, and our rights. A Duncan confirmation threatens to send us back in time, so we must make our voices heard.
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. She 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.
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. 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.
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 beastiality. 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.
McConnell wants to eliminate blue slips:
In an attempt to jam through as many anti-women’s health, anti-LGBTQ, and anti-voting rights judges as possible, McConnell wants to end the 100-year-old, bipartisan blue slip tradition. Getting rid of this process would end cooperation between the executive and legislative branches on judicial nominees and disincentivizes the White House from choosing 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?
Nearly a third of vacancies are in court systems that are so over capacity that they’ve been deemed “judicial emergencies” by the Administrative Office of the U.S. Courts. 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 of the Eighth Circuit is threatening to end access to medication abortion entirely and eliminate abortion access at all but one health center in all of Arkansas. 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. With seven vacancies on circuit courts, our rights are at risk in these and many other states. We must not allow access to care 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.