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The Nation’s Elie Mystal says Conservative think tanks and Senate Majority Leader McConnell are creating a right-wing federal court system with Trump’s help that will affect generations to come

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MARC STEINER Welcome to The Real News Network. I’m Marc Steiner. Good to have you with us.

I’ve been saying for years that the single most important reason that people might want to vote for Democrats from time to time is the future of our federal court system. The conservative ideological machine driven by Senator Mitch McConnell is getting its way through manipulating the president himself, Donald Trump. In their appointments to the courts, Trump Court— if we can call it that— will transform our federal judicial system. The Warren Court that ended legal school segregation, gave us Roe v. Wade, might have been a Rooseveltian anomaly.

What we face now could affect the nature of our society for generations to come and no one more aptly describes what we face as our guest who wrote the cover article for the July 19th Edition of The Nation magazine entitled “Donald Trump and the Plot to Take Over Our Courts.” Elie Mystal is the Executive Editor of Above the Law, contributing writer for The Nation, Legal Editor of WNYC’s “More Perfect,” and can be followed at @ElieNYC. And Elie, welcome. Good to have you here on The Real News.

ELIE MYSTAL Thank you so much for having me, Marc.

MARC STEINER It is a really chilling article that you wrote, but an important one. I mean, one of things—Let’s just describe it before I look at some of your quotes and look at some of the people that you talked about are being appointed the courts. It was, what really was stunning is the number of federal appointments that Obama was not allowed to make, now Trump is filling them all, and what that means in reality. Talk a bit about that.

ELIE MYSTAL Yeah. So everybody remembers Mitch McConnell blocking Merrick Garland, Obama’s nominee to the Supreme Court.


ELIE MYSTAL But what people have to understand is that the Merrick Garland nomination, that was just the capstone on McConnell’s career of blocking Obama nominees. He blocked Obama nominees throughout the judicial system as the majority leader. He blocked Obama nominees throughout judicial system as the minority leader. Okay. So by the time Donald Trump took office, there were 106 vacancies in our federal judiciary system waiting for Trump to fill them. Now, I don’t know if that’s a record because I imagine George Washington had a whole lot of judges to appoint. But, I mean, for modern times that is—

MARC STEINER [inaudible] — judges in that whole time. You don’t know. [laughs]

ELIE MYSTAL It was a smaller country back then, right?


ELIE MYSTAL So you never know. But Trump had an amazing amount of vacancies open, and that’s because of the obstruction for eight years carried out by Mitch McConnell.

MARC STEINER And you also though describe a couple of things with this. I mean, it’s the numbers that you talk about here and the certain courts that they take over which I’d like you talk to for a bit. But also, the organizations that have been at this for a long time that are actually calling the shots, unlike other presidencies when the president says, here’s the list, here’s my list, what’s your list? Let’s pick somebody out. This is something very different taking place.

ELIE MYSTAL Exactly. Make no mistake. Donald Trump has no idea who he’s nominating to most of these positions, right? He barely knows their names.

MARC STEINER I’m going to use this quote from your article. “The Trump court, of course, is not actually Trump’s idea; he probably wouldn’t be able to tell you the difference between [Chief Justice] John Roberts and Judge Wapner.” [laughs]

ELIE MYSTAL He doesn’t know. The person who knows is Mitch McConnell and the people who know are the Federalist Society. So to explain that very quickly, the Federalist Society is a nonprofit legal group that supports libertarian values and an originalist interpretation of the Constitution. Without getting into the legal weeds, what you really need to know is that the Federalist Society supports arch conservative Justices, and they’ve been doing this for generations. This is where the Democrats have dropped the ball. The Federalists have been going into law schools, identifying conservative-leaning students, incubating them, training them, promoting them, telling them which judge to clerk for, telling them which jobs to take. So that by the time they are all grown up, when they have an opportunity to put judges on the courts, they know exactly who they’re going to.

So when Donald Trump gets 106 nominations, the Federalist Society has 200 judges at the ready to fill those seats. If the next Democratic president got a hundred nominees, we wouldn’t know how to fill them. We’ve got like 25, 30 people who are ready to go right now. And that’s because the Federalist Society, the Heritage Foundation, the Koch brothers—These people have been planning this for so long, that they were particularly ready to take advantage of what Trump has given them.

MARC STEINER I mean, because if you look—Before we go into some of the details you go into in terms of the judges, I want to pick two or three of these people out to talk about them to show our viewers just the kind of people being put in these courts and what that could mean for the future of these courts. I mean, when you look at the Warren Court, as I said in the opening that ended school segregation, then Roe v. Wade, all the things that happened during that period, the very progressive-minded jurists, that was really an anomaly in American history. It’s almost as if we’re going back to the roots of this nation, you know, that are deeply embedded in race and racism and working for the wealthiest. We don’t realize what this history is telling us and where we are now.

ELIE MYSTAL Historically speaking, the courts have been there to retard progress, not to promote it. The Dred Scott decision that basically started off The Civil War, that was a Supreme Court decision. Korematsu, which authorized the internment of Japanese American citizens during World War II, that was the Supreme Court, right? So historically speaking, the courts have retarded progress. There was this bit in the 60s and 70s where as you point out, the Warren court started to unravel some of the segregation, started to promote women’s rights, but that was an anomaly. That was a small period of time. But it is in response to that court that groups like the Federalist Society were started. It’s in response to the Warren Court that conservatives have planned for the past 30 years to figure out how they’re going to take back the courts, and they are successful. They have been successful. And we now stand on a precipice where certainly if Trump gets another term, his complete remaking of the federal judiciary will be complete.

MARC STEINER So let’s talk about some of the people that you mentioned in your article as examples of a large group of men and women that are being appointed. As you point out in your article, these are young people. Many of them are in their 40s and early 50s. These are not—So that they can be in the courts for many, many decades to come. So one of the people you talk about in the very beginning of your article is Don Willett. And you can talk a bit about him and you have this quote from Don Willett up here. “I resist the proclamation’s talk of ‘glass ceilings,’ pay equity (an allegation that some studies debunk), the need to place kids in the care of rented strangers, sexual discrimination/harassment, and the need generally for better ‘working conditions’ for women.” He’s now on the court.

ELIE MYSTAL Yeah. Don Willett. That was something he wrote when he was working for George W. Bush when Bush was the Governor of Texas. Well, it is a classic example of the kinds of judges Trump, McConnell, The Federalists, that they want, right? We all understand that Trump has promised to nominate anti-abortion judges. I mean, that’s a threat that Donald Trump has made good on. But what people don’t understand is that when you dredge up the kind of judge who is willing to overturn settled precedent like Roe v. Wade, what you have to understand is that you’re getting a judge who is willing to overturn all sorts of things. A judge who in the case of Willett is strongly anti-LGBT rights to the point where when he was merely a state court judge in Texas, after the decision that legalized same-sex marriage, Willett did everything he could to delay the implementation of same-sex marriage in Texas. Where, as a Texas judge, he has written strongly against the right for married gay couples to adopt children. So that’s the kind of person you’re getting when you say, I’m going to appoint judges who will overturn Roe v. Wade.

MARC STEINER So let’s talk about another one. There are a couple of more if we can get to them in the time we have. But you talk about Amy Coney Barrett, that you call the handmaiden, who’s been sent to the court of appeals. She’s only 47. And so, talk a bit about her and what—I mean, because this in some ways is one of the most dangerous appointments.

ELIE MYSTAL Exactly because she is who’s coming next to the Supreme Court. If Ruth Bader Ginsburg turns out to be mortal, and that mortality happens while a Republican is president, the Republicans have planned to promote Amy Coney Barrett to fill her seat in the Supreme Court specifically because Amy Coney Barrett is basically on the record as being against precedent, and that will allow her to overturn Roe v. Wade. This is not me playing identity politics. This is not me projecting upon the Republicans. Republicans have said explicitly that they want Amy Coney Barrett on the Supreme Court to overturn Roe v. Wade because they want a woman to do it. I don’t know why, but they seem to think that if a woman crushes women’s rights, that’s somehow better. Like we don’t notice it if they have a woman do it—

MARC STEINER Or it justifies it because a woman said it.

ELIE MYSTAL Exactly like, oh, well we found this one woman who doesn’t care about women’s rights, so clearly we’re not sexist. I think that’s how they think, but they have explicitly said that they prefer Amy Coney Barrett to anybody else to replace Ruth Bader Ginsburg because she’s a woman. And so, most likely, again if Ginsburg— God forbid— passes away during a Republican administration, Amy Coney Barrett is what happens next, and that means the overturning Roe v. Wade is what happens next.

MARC STEINER So two quick things here. Though they won’t be quick if your answer could be for long. I don’t have much time, but they’re really important. A, is that this, I mean, this shows how important it is who controls the Senate because that’s where these nominations take place and that’s very real. And B, people really ought to understand what the consequences are of having this right-wing conservative jurists control our federal system. I mean, these are not minor issues we’re facing here. This is huge.

ELIE MYSTAL It’s the reason why people should vote for the Democrats not just for the presidency, but up and down the ticket. I say to young people all the time: if you care about climate change, if you care about what’s happening to our planet, then you have to control the courts because these conservative judges don’t believe in regulation. And regulation is what you’re going to need if you’re going to stop carbon emissions, or mercury dumping, or methane leaks. You need regulation and these conservatives don’t agree with that. If you want gun reform, if you want gun regulations, you have to nominate judges who do not believe that the Second Amendment allows you to, you know, confers a right to own a tank. All right. You have to nominate centrist-progressive judges who believe that a well-regulated militia is an important part of the Second Amendment and not something that can be discarded.

You can kind of go up and down the list, but if there are things that you believe in your personal politics, you can’t get them done if you have a conservative court against you. As it stands now, Trump controls 22% of the judiciary below the Supreme Court. If we let him get a second term, we’re talking about 20, 30, 40 years of courts being able to frustrate pretty much the entire progressive agenda. So I don’t care if you [don’t] like Amy McGrath who’s running in Kentucky against Mitch McConnell. I don’t care if you don’t like the person who ends up being the Democratic nominee. You should vote for the Democrats if you care about any of these issues.

MARC STEINER Elie Mystal, thank you.

ELIE MYSTAL Thank you, Marc.

MARC STEINER It’s been a pleasure to talk to you. We need to do more of this over the next year and keep pushing these issues really hard. Thank you for what you do and thank you for joining us today.

ELIE MYSTAL Thank you.

MARC STEINER And I’m Marc Steiner here for The Real News Network. We’re staying on top of this stuff. I promise you. Take care.

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Host, The Marc Steiner Show
Marc Steiner is the host of "The Marc Steiner Show" on TRNN. He is a Peabody Award-winning journalist who has spent his life working on social justice issues. He walked his first picket line at age 13, and at age 16 became the youngest person in Maryland arrested at a civil rights protest during the Freedom Rides through Cambridge. As part of the Poor People’s Campaign in 1968, Marc helped organize poor white communities with the Young Patriots, the white Appalachian counterpart to the Black Panthers. Early in his career he counseled at-risk youth in therapeutic settings and founded a theater program in the Maryland State prison system. He also taught theater for 10 years at the Baltimore School for the Arts. From 1993-2018 Marc's signature “Marc Steiner Show” aired on Baltimore’s public radio airwaves, both WYPR—which Marc co-founded—and Morgan State University’s WEAA.