John Adams, second president of the United States and noted puritanical sourpuss, had a tough start to 1801. The election of 1800 had been brutal to Adams and his Federalist Party, an epic fanny kicking from that insufferable know-it-all Thomas Jefferson and his smug gang of waffle whisperers, the (to us) oxymoronically named Democratic-Republican Party.
Even worse than losing control of the executive and legislative branches of government was the dawning realization that as a political force, the Federalists were spent. While the party would stagger on as a regional player in New England for another decade or so, the Federalists were done as a national-level electoral threat. The rump of their Congressional caucus retreated into opposition and soon receded into nothingness.
So, you can understand Adams’ agony in the first months of 1801. Under the rules of the day, Jefferson–who Adams saw as little more than as a cheese-eating Gauloises puffer–didn’t take office until March. Adams, therefore, had plenty of time to contemplate the electorate’s rejection of his political party and marinate in the vinegary knowledge that the Democratic-Republicans would be ruling the roost for the foreseeable future. How could the Federalists retain even a smidge of influence if the voters viewed them as toxic?
Well, there is one other branch of government that, luckily for Adams, was largely insulated from the electorate. Members of the federal judiciary never have to chance the ballot box to keep their jobs and once appointed, unless they engage in felony-level naughtiness, they are in for life. And thus the Adams administration hit upon a formula for insuring long-term influence for a political party just categorically rejected by the voters. The Federalist congress jammed through a bill creating a bunch of new federal courts. Adams stuffed these with the so-called “Midnight Judges,” last-minute appointees specifically selected to insure the Federalists would continue to rule on the big issues of the day for years to come.
I kind of wonder if we’re seeing something similar going on with Donald Trump and the Republican Party right now. The comparison might be a little strained because, electorally speaking, they are not lame ducks, but young fowl still dipping their beaks into the sweet, sweet spoils of victory. Yet if public opinion is any guide, the president and his party are already less popular than the Federalists. Indeed, their polling numbers are so low they have to look up to see whale butt (Nate and crew over at FiveThirtyEight can give you all the gory details). So, while there may be no official lame ducks, recent election results and survey trends suggest the Republican Party definitely is developing a bit of a gimp.
Even if it is headed for an electoral smash-up, though, the party’s long-term influence is being secured through a pell-mell drive to appoint judges. And, thanks to the GOP’s bang up job of sidelining Barrack Obama’s appointments, there’s a lot of judgeships to fill. So, if you’re pro-life, pro-business, pro-corporation, anti-environment, anti-public schools, no probs. Even a complete tanking at the ballot box by Republicans means the black robe set will be there to help insure that your bank or hedge fund is safe from predatory customers wanting to know where their money went. These aren’t midnight judges so much as sunset judges. Right now, there’s still plenty of light falling on Republicans, but these appointments are like early stars that will continue to provide ideological illumination for the GOP should its electoral fortunes go dark.
While it all smacks of unseemly partisan fiddling with the scales of justice, Adams’ appointments showed this sort of sneaky-beaky could have an upside. One of his midnight judges was none other than Chief Supreme Court Justice John Marshall, one of the most important and influential jurists of his and any other era. Trump’s appointments, though, don’t seem quite in that league. Take Matthew Petersen. At his confirmation hearing, under gentle questioning from a Republican Senator about his qualifications for the bench, Petersen all but said, “I don’t know jack about the law, but think I could swing a mean gavel” (you can watch a cringe-inducing video of this exchange here). But there’s also Brett Talley who, among other things, posted online smoochies to the KKK and forgot his wife worked in the White House office. How did a guy like that end up getting nominated? Well, Talley’s job—I’m not making this up—was deciding who would make a good judicial nominee for the Trump administration. Not hard to connect dots there. There’s also Jeff Mateer, who was so impartial and committed to due process for all that he declared transgender children as part of “Satan’s plan” and disgusting.
These three guys’ nominations failed because even Republicans dedicated to the lickety-split process of stuffing as many conservatives onto the court as possible blanched. Yet they’re completely fine with giving the likes of Leonard Steven Grasz a lifetime appointment, even though Grasz was rated unqualified to serve by the American Bar Association. The basic consideration for being rated qualified by the ABA is pretty minimal. Having a law degree and the power of speech is usually does the trick (less than one-tenth of one-percent of nominees get rated unqualified). The ABA interviewed a couple of hundred people about Grasz and heard a consistent story that, among other things, Grasz was an unrelenting ideologue and was “gratuitously rude.” To the GOP, that was just sort of guy who should be a federal judge.
Grasz, along with the rest of Trump’s huge swath of nominees, will spend decades on the bench, their appointments encasing in political amber the ideals of the party currently holding power. Whatever the electoral future of the GOP, its sunset judges ensure its influence will continue. Adams would be proud.