Senate GOP breaks 123-year tradition to pack courts with Trump’s judicial nominees in spite of loss

The latest judge approved by Mitch McConnell & Co. is a 33-year-old lawyer who the Bar Assoc. rated “not qualified"

By Igor Derysh

Managing Editor

Published November 19, 2020 10:54PM (EST)

Mitch McConnell and Lindsey Graham (Photo illustration by Salon/Getty Images)
Mitch McConnell and Lindsey Graham (Photo illustration by Salon/Getty Images)

Senate Republicans have bucked a century-old tradition to continue to confirm President Donald Trump's judges in spite of his election loss.

The Senate has confirmed six district court nominees since the election, including a 33-year-old attorney with little trial experience who was rated "not qualified" by the American Bar Association (ABA). The move broke a "123-year tradition against voting on judicial nominees of an outgoing president of the defeated party during a lame duck session," according to Bloomberg Law.

Judicial nominees of presidents who lost their re-election or whose party was defeated have not been confirmed after an election since 1897, Russell Wheeler, a visiting fellow at the Brookings Institution who studies judicial appointments, told the outlet. The lone exception was when the Senate confirmed future Supreme Court Justice Stephen Breyer, who was then the chief counsel to the Senate Judiciary Committee, to a circuit court in 1980.

The push comes as the Senate continues to stall on a coronavirus relief package despite the number of pandemic deaths rising to more than a quarter-million and massive spikes in cases across the country. Senate Minority Leader Chuck Schumer, D-N.Y., and House Speaker Nancy Pelosi, D-Calif., called on Senate Majority Leader Mitch McConnell, R-Ky. to "finally come" to the negotiating table this week. The House passed a $3.4 trillion package back in May and a $2.2 trillion compromise offer last month. McConnell has refused to budge from his $500 billion offer, even though economists say the country needs at least 400% more in relief funding to get through the winter.

McConnell has vowed to continue to confirm judges, announcing plans to move forward with two nominations handed down since Supreme Court Justice Amy Coney Barrett's confirmation.

"We're going to run through the tape," McConnell said in a radio interview after the Barrett vote. "We go through the end of the year, and so does the president."

Senate Judiciary Chairman Lindsey Graham, R-S.C., has suggested that the Senate may even confirm nominees in January — right up until President-elect Joe Biden is inaugurated on Jan. 20.

Asked about the tradition of not confirming judges after election defeats by Bloomberg Law, a spokesperson for McConnell "pointed to Senate norms that Democrats have abandoned in the judicial nominations process." Democrats eliminated the filibuster for lower court and executive nominees in 2013 before Republicans eliminated the filibuster for Supreme Court nominees in 2017 to push through the confirmation of Justice Neil Gorsuch.

Sen. Dianne Feinstein, D-Calif., the top Democrat on the Judiciary Committee, called for Senate Republicans to halt confirmations after Trump's defeat, citing the longstanding tradition of not confirming judges after a president's defeat.

Feinstein wrote a letter to Graham calling on him to respect "long and established tradition" and "accordingly cease to process judicial nominations and allow the Biden-Harris administration the opportunity to appoint judges after Inauguration Day."

One of the four district court nominees approved this week was Kathryn Kimball Mizelle. She is an attorney at the law firm Jones Day, which is one of the firms involved in the Republican legal crusade challenging the results of the election.

Mizelle is also a member of the Federalist Society, the conservative dark money group which has steered and bankrolled Trump's judicial appointments. She is also close to Justice Clarence Thomas, with whom she taught a course at the University of Florida, according to The Tampa Bay Times.

Prior to joining Jones Day, Mizelle worked as a lawyer in Trump's Department of Justice. She supervised litigation from the agency's Civil Rights Division and Civil Division, which rescinded protections for transgender students, dropped its opposition to racially discriminatory election policies and opposed policies expanding health care and education opportunities to people from disadvantaged backgrounds during her tenure, according to the Leadership Conference on Civil and Human Rights.

"It is deeply disturbing that someone like Ms. Mizelle – who was involved in many of the Trump administration's most egregious civil rights rollbacks – would be rewarded for these actions with a lifetime appointment to the federal bench," Vanita Gupta, the group's president and CEO, said in a letter to senators ahead of the vote, describing Mizelle as an "ultraconservative ideologue" and a "Trump loyalist."

The 33-year-old Washington attorney, the youngest Trump pick to be approved by the Senate yet, was confirmed in a 49-41 vote on Wednesday to a district court seat in Florida despite being rated "Not Qualified" by the ABA.

The ABA, which usually sets a 12-year threshold for a nominee to be rated as qualified, said in a September letter that Mizelle, who has little trial experience and was only admitted to the bar in 2012, "represents a rather marked departure from the 12 year minimum."

She is the tenth Trump nominee rated "not qualified" to be confirmed by Senate Republicans.

Mizelle "is woefully unprepared and unqualified to serve as a federal judge," Gupta wrote. "While this matters little to the Trump administration — which has spent the past four years attempting to lard the federal courts with young, right-wing extremists like Ms. Mizelle — her lack of experience should make her nomination a non-starter . . . Rather than processing judicial nominees, the Senate should be focused on addressing the many urgent challenges that are gripping our nation at this moment," such as the "devastating health and economic impact of the COVID-19 crisis."

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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