Opinion: Mask ruling shows Trump’s toxic
judicial legacy is poisoning America
By Paul Waldman
Columnist
Today at 1:14 p.m. EDT
When
Donald Trump first ran for president, it was clear that he didn’t have strong
feelings about the federal judiciary. He literally outsourced the
picking of judges to the conservative Federalist Society; it gave him lists of
approved judges, and he followed its recommendations.
Yet
despite the shallowness of Trump’s thoughts on the U.S. legal system, in four
years he succeeded in poisoning the federal bench. And as a shocking ruling
from a U.S. district judge in Florida on the Centers for Disease Control and
Prevention’s mask requirement on public transportation has illustrated, Trump
left us with a toxic judicial legacy.
Judge
Kathryn Kimball Mizelle issued a
nationwide injunction Monday invalidating the requirement on
the dubious grounds that the CDC’s authority to act to prevent the spread of a
disease that has killed nearly 1 million Americans doesn’t extend to requiring
masks on interstate travel.
People
have different opinions about the utility of mask mandates at this stage of the
pandemic, and that’s fine. I’d argue that in almost no context are they more
justified than in transportation, where people get packed into a confined space
breathing each other’s air, sometimes for hours at a time. You might disagree.
Mizelle
clearly does. What’s problematic is that she is imposing her policy
preference on the whole country, conjuring up whatever legal
justification she could pull out of the air to make it happen.
It’s
hard not to think of those supercilious Republican senators we saw lecturing
Ketanji Brown Jackson about how she shouldn’t “legislate from the bench” and impose
her policy agenda on the country, because they care so deeply about the
neutrality of judges.
How
many of them have criticized Mizelle’s ruling? Zero, of course.
Mizelle
was rushed through the confirmation process after Trump lost the 2020 election;
only 33 at the time, she had been a lawyer for a mere eight years. The American
Bar Association rated her “Not Qualified,” but not a single Republican voted
against her confirmation. She could be dictating U.S. law for another
half-century.
This
was the pattern during the Trump years: Trump would appoint some very
conservative but nevertheless qualified judges and some outright hacks, and
Republicans would confirm them all.
To
understand how unified they were in this project, consider a particular
numerical score: 345 to 3.
The ABA has
been rating judicial nominees since 1989; in all that time, a total of 22
nominees have been rated “Not Qualified.” Ten of those 22 were nominated by
Trump.
Two of
Trump’s Not Qualified nominees withdrew
their nominations, and a third was confirmed on a voice vote. That leaves us
with seven whose confirmation votes were tallied. So how much Republican
support did the Not Qualified nominees get?
Of
those seven nominations, three got a single Republican no
vote, two from Susan Collins of Maine and one from Jeff Flake of Arizona. The
other four got the votes of every Republican present. Add it all up and you get
345 Republican yea votes to just 3 nay votes.
That’s
what Republicans did when presented with the Trump hacks: They supported them
enthusiastically.
It’s
not just that Trump chose a bunch of unqualified far-right partisans, though he
did. The deeper problem is that more than their ideas about the Constitution or
policy, Trump’s judges have embodied his perspective on the American system of
government, which is that there is nothing inherently worthwhile about any of
it. There are no principles worth adhering to, no systems that should command
respect, and no rules worth obeying if you don’t like the outcome those rules
produce.
So if
you’re a judge and you don’t like a Biden administration policy, you issue a
nationwide injunction to stop it, because “Let’s go, Brandon!” And it’s not
just district court judges; there’s been a sweeping shift in perspective on the
right, both on and off the bench.
It’s why
Republican states are no longer waiting for the Supreme Court to strike
down Roe v. Wade to outlaw abortion. Sure, Roe may
still technically be the law of the land, but who cares? Who’s going to stop
us?
At
least five of the six conservative Supreme Court justices (Chief John G.
Roberts Jr. being the exception) seem to have almost stopped worrying about
justifying their decisions, let alone respecting stare decisis, no
matter what line of baloney they spat out at their confirmation hearings.
The shadow docket is
now their policy playground, where they issue “emergency” orders whenever they
see an outcome they’d like to achieve.
This is
the situation we now confront: The judiciary is stocked with Trump appointees
(and appointees of previous Republican presidents who feel newly unleashed) who
view their seats and the law as tools to achieve partisan goals. They will do
whatever is necessary to stop anything and everything a Democratic president
tries to do.
What
will it take for Democrats to finally take the courts seriously as a political
threat? The stonewalling of Merrick Garland’s Supreme Court nomination didn’t
do it. The appointment of all the Trump hacks didn’t do it. Will the
overturning of Roe do it? We’ll find out soon enough.