Podcast Summary: Amicus With Dahlia Lithwick

Episode: The Single Most Unremarked Win of the Trump Era
Date: October 14, 2017
Host: Dahlia Lithwick
Guest: Kristen Clarke (President & Executive Director, Lawyers' Committee for Civil Rights Under Law)

Main Theme

The episode delves into what host Dahlia Lithwick describes as "the single most unremarked win of the Trump era": the rapid and unprecedented transformation of the federal judiciary through a large number of judicial appointments. Lithwick and guest Kristen Clarke discuss how these actions, often overshadowed by other controversies, represent a consequential shift with long-term impact on the US legal landscape. They focus on the processes, traditions, diversity, and motives behind these appointments, and the implications for American law and civil rights.

Key Discussion Points & Insights

1. The Overlooked Importance of Judicial Appointments

• Vast Vacancies and Consequences

  • At the start of Trump’s term, there were about 150 federal court vacancies ([02:22] A).
  • These appointments matter greatly, as federal courts handle critical civil rights cases, such as challenges to the Muslim ban.
  • Judges serve lifetime appointments, shaping the law for generations.

• Host Perspective:

  • “I think this might be the single most unremarked win of the Trump era, and it's a win that will have consequences that last for decades.” ([01:21] B)

2. Process & Tradition in Judicial Nominations

• The Blue Slip Tradition

  • Historically, senators from a nominee’s home state return “blue slips” to signal approval, helping ensure bipartisan and locally vetted picks ([09:08] A, [12:18] A).

  • This tradition is under threat; Senate Republicans, led by Mitch McConnell, have suggested abandoning it.

  • Kristen Clarke:

    • “This is a longstanding practice that empowers every senator...to help determine which judges get confirmed for local judgeships in their states. It's a final check to ensure that the courts reflect the actual communities that they serve.” ([12:18] A)

• ABA’s Role Diminished

  • The Trump White House ended the American Bar Association's longstanding vetting role and is relying more on groups like the Federalist Society ([14:54] A).
  • This shift removes a bipartisan, professional filter.

3. The Pace and Nature of Trump’s Judicial Picks

• Breakneck Speed, Young Ideologues

  • Trump’s nomination pace far exceeds predecessors’: already 60 nominees, with 7 confirmed, and more judges in his first year than any prior president ([16:42] B).
  • Focus is on states with two Republican senators to sidestep pushback ([17:41] A).
  • Nominees are often significantly younger, suggesting decades of influence ([26:20] B).

• Scrutiny and Transparency Concerns

  • Multiple hearings on the same day limit the public and Senators’ ability to vet nominees ([17:41] A).

4. Nature and Background of Some Nominees

• Controversial Nominees Cited

  • John Bush compared slavery and abortion, failed to disclose problematic social club membership ([17:41] A).
  • Damian Schiff called Justice Kennedy a “judicial prostitute” and opposed LGBT equality ([17:41] A).
  • Jeff Mateer described transgender children as “part of Satan’s plan” ([20:52] B).

• Lithwick's critique: Many such nominees lack judicial temperament; their writings are polemical rather than judicious ([20:52] B).

• Kristen Clarke on the Record of Nominees:

  • “The words that people utter, the writings...all of these things matter and inform and shape the record...I worry that a lot of these radical individuals with fringe views don't have that capacity and are really making their way onto the bench to advance a political agenda.” ([22:13] A)

5. Comparisons to Previous Administrations

• Was Obama’s Approach the Same?
  • Obama focused on diversity and bipartisan support, adhering to traditional vetting processes ([09:08] A).
  • Clarke argues diversity should not be equated with “radicalism” ([24:23] A).
  • “President Obama was very mindful of finding judges who could be fair and independent...could draw some margin of bipartisan support.” ([09:08] A)
• Current Trend: Lack of Diversity
  • Clarke laments “the whitening of the courts” under Trump, with fewer women or people of color among appointments ([24:23] A).

6. Why Courts Matter and the Need for Public Engagement

• Lower Federal Courts Quietly Set Precedent

  • About 95% of federal cases end at the Court of Appeals, not the Supreme Court ([07:18] B).

• Public Awareness and Involvement

  • Litigations on immigration, voting rights, civil rights, and more are decided by these appointees ([27:23] A).
  • Clarke calls on the public to stay engaged and urge Senators to carefully vet nominees ([27:23] A).
  • “At the end of the day, the senators do have a job. They do have an obligation and a constitutional responsibility to fully and fairly evaluate these judicial nominees. And the public should speak up, speak out, and reach out to their senators when they learn about nominees that fall too far outside the mainstream.” ([29:48] A)

7. Why Republicans Are More Energized on the Courts

• Lithwick’s Observation:
  • Democrats struggle to connect the courts to tangible stakes; Republicans have made this a core mobilizing issue ([26:20] B).
• Clarke’s Analysis:
  • Media attention on headline-grabbing executive actions overshadows the slower-burning judicial crisis ([27:23] A).
  • The judiciary is where these controversial policies are ultimately contested and decided.

Notable Quotes & Memorable Moments

• On the Significance of Federal Judges

  • “It's an issue that impacts all Americans and one that we have to pay close attention to.” — Kristen Clarke ([02:22] A)

• On Eroding Traditions

  • “We're seeing traditions thrown out the window. And I think all of this presents a dangerous scenario in terms of thinking about the transformation of the courts that could happen in the road ahead.” — Kristen Clarke ([15:57] A)

• On the Difference Between Parties' Approach

  • “To the extent that people equate diversity with the notion of being radical, I guess I would dismiss that notion.” — Kristen Clarke ([24:23] A)

• On Public Responsibility

  • “At the end of the day, the senators do have a job. They do have an obligation and a constitutional responsibility to fully and fairly evaluate these judicial nominees. And the public should speak up, speak out, and reach out to their senators when they learn about nominees that fall too far outside the mainstream.” — Kristen Clarke ([29:48] A)

Timestamps for Key Segments

• [02:22] Clarke outlines the scope of vacancies and their importance.
• [05:02] Clarke recounts her experience at the Gorsuch confirmation hearing.
• [09:08] Discussion of the blue slip tradition and Obama’s judicial picks.
• [14:54] The sidelining of the ABA and increased role of Federalist Society.
• [16:42] Lithwick shares the pace and scale of Trump’s appointments.
• [17:41] Clarke discusses concerning nominee records and the fast process.
• [20:52] Lithwick and Clarke discuss the “blogger”-like nominees and their hearings.
• [24:23] Clarke addresses diversity versus radicalism; the demographic impact of Trump’s picks.
• [27:23] Clarke explains why Democrats are less focused on the judiciary and why public engagement is essential.

Overall Tone

The episode is urgent, concerned, and informational, using concrete examples to highlight what the hosts and guest see as an ongoing crisis in federal judicial appointments. Clarke, in particular, uses direct, accessible messaging to emphasize the stakes, aiming to wake listeners up to the importance of judicial appointments and the erosion of traditions meant to protect fairness and public trust in the courts.

For those who haven’t listened:
This episode offers a critical, accessible exploration of the federal judicial appointment process, the stakes of recent changes, and a call to action for greater public scrutiny and engagement. The conversation provides clear background, policy context, and examples, making it an essential listen (or read) for anyone concerned with the rule of law and American democracy.