WASHINGTON – North Carolina Sen. Thom Tillis declared his opposition last week to one of President Trump’s judicial nominees – a rare defection from a freshman Republican who touts his leadership of his party’s efforts to reshape the federal judiciary.
Yet North Carolina Democrats are nonetheless gearing up to hit the senator, who is up for reelection next year, on his near-perfect record in support of the president’s lower-level judicial nominees – an issue that typically flies under the political radar.
“Sen. Tillis’ role in confirming a number of controversial judges will certainly be a part of our campaign,” North Carolina Democratic Party spokesman Robert Howard told Policy Watch, adding: “They reveal a set of priorities for Sen. Tillis that are certainly out of touch with North Carolinians, and we want to make sure voters know.”
Tillis has not yet cast a single floor vote against a Trump judicial nominee, according to Quorum, a public affairs software company. Since January 2017, he has either cast votes for – or missed votes on – the president’s nominees.
A vote against Michael Bogren, nominated to the U.S. District Court for the Western District of Michigan, would be his first “nay” floor vote. The opposition appears to be based, however, on the belief that the nominee is insufficiently conservative. Tillis took issue with Bogren’s performance at a Judiciary Committee hearing last month, during which Bogren defended a brief he signed that compared a Catholic family’s refusal to provide wedding services to same-sex couples with a white supremacist group’s opposition to interracial marriage, according to Politico.
Tillis spokesman Adam Webb said the senator is “proud of his role confirming Neil Gorsuch and Brett Kavanaugh to the Supreme Court and working with the Senate majority and President Trump to remake the federal judiciary, setting new records confirming judges to the lower courts.” He did not respond to requests for comment about his position on Bogren.
Howard said Democrats plan to highlight Tillis’ record on judicial nominations on the campaign trail. He pointed to Tillis’ recent vote for Chad Readler, who was confirmed in March to a lifetime appointment to the U.S. 6th Circuit Court of Appeals on a near-party line vote. Last year, Readler, then a Trump administration official, filed a brief in support of Republican efforts to strike down the Affordable Care Act, including its protections for people with pre-existing conditions. Tillis has called those protections “pretty important” but said he had no problem leaving implementation to the states.
“Tillis is rewarding someone who spearheaded the effort to rip away protections for preexisting conditions for more than 4 million North Carolinians and make health care more expensive for everyone,” Howard said in a statement. “Tillis has shown again he’ll say one thing but do the opposite, and North Carolinians are right not to trust him with their health care.”
National Democrats said Readler’s confirmation would be an issue in 2020, with Senate Minority Leader Charles Schumer of New York pledging to remember it “for a long time.”
Howard also pointed to Tillis’ staunch support for Thomas Farr, whose nomination to the Eastern District of North Carolina fizzled late last year amid controversy over charges of voter suppression. Opponents pointed to Farr’s role as a legal counsel to the late GOP Sen. Jesse Helms, whose 1990 reelection campaign was accused of sending more than 100,000 postcards to Black voters suggesting they were ineligible to vote and could face criminal charges for casting ballots. The African American Ministers in Action called Farr’s association with Helms “the tip of a very ugly iceberg.”
Tillis championed Farr and defended him in the media, calling him “the subject of a coordinated and viciously dishonest smear campaign from the far-left.” But last November, a memo from the George H.W. Bush administration surfaced that named Farr in the Helms’ campaign’s voter suppression efforts, which prompted Sen. Tim Scott, a Black Republican from South Carolina, to oppose and effectively kill the nomination.
Tillis touts leadership
Tillis touts his leadership on the issue on his website and official Twitter account. “Senate Republicans and @realDonaldTrump are setting records by confirming well-qualified judges,” he tweeted last month. He pointed to confirmation of Kenneth Bell of North Carolina to be U.S. District Judge for the Western District of North Carolina (though he missed the floor vote).
Trump and his Senate allies are indeed plowing through a “backlog” of judges and other executive branch nominees. From January to April, the Senate confirmed 23 executive-branch nominations during 48 days in session, Senate Majority Leader Mitch McConnell said on the Senate floor. In the 20 session days that followed, the Senate confirmed 45 nominees.
“That’s twice as many nominations in less than half the time,” McConnell said, crediting his progress to a rules change he engineered to vastly reduce debate time on many nominees.
In addition to two Supreme Court nominees, Republicans have confirmed 110 lower-court judges since Trump took office in January 2017, 26 more than were confirmed at the same point in the Obama administration, according to People for the American Way, a progressive advocacy group. This includes Trump’s 41 circuit court nominations, compared to Obama’s 19.
Trump’s confirmations are likely to proceed apace as a result of the GOP’s “nuclear” rules change, according to Marge Baker, executive vice president at People for the American Way. By the end of next week, Trump will likely have an additional eight district court nominees confirmed, bringing his total to 77 – 10 more than were confirmed at this point in the Obama presidency, Baker said.
In a speech this week to the Susan B. Anthony List, a political action committee that supports pro-life lawmakers, McConnell trumpeted his efforts to confirm Trump’s lifetime appointments to the federal bench. “I think that’s the way we have the longest impact on our country, and the most positive way into the future.” The victories are “already paying early dividends,” he continued. “My view is, there will be no vacancies left behind. None.”
The GOP’s under-the-radar effort to “pack our federal courts” has profound implications for Americans, warns a report by People for the American Way. Trump’s “narrow-minded, elitist judges” will dismantle federal protections for the health, safety and welfare of Americans and undermine reproductive, voting, LGBTQ and other rights, the group concludes.
The ‘cake is going to be baked’
Politically, Tillis has little incentive to oppose the president’s nominees, according to Jason Roberts, a political science professor at the University of North Carolina at Chapel Hill. To start, he faces a primary challenge from the right and is under pressure to showcase his conservative credentials. Activists who object to his support for Trump’s judicial nominees will likely oppose him in the fall, Roberts added.
“In terms of the general election, the cake is going to be baked.”
Indeed, lower-level appointments to the federal judiciary are rarely hot-button election issues, noted Eric Heberlig, a political science professor at the University of North Carolina at Charlotte.
In a November 2018 poll in North Carolina, voters ranked health care, the economy, and Social Security as issues of top concern. Supreme Court appointments ranked 10th on the list of 16 issues, and voters were not asked to consider lower-level appointments.
Still, Democrats could use judicial nominations to drive up turnout among the Democratic base, particularly in the wake of Trump’s controversial Supreme Court nominations and a spate of new state laws restricting access to abortion, Roberts said.
Howard went further, saying these votes could turn off some college educated women in traditionally Republican suburban districts. “We’re beginning to see a slow shift among the Democratic base and Democratic-leaning voters into understanding the ramifications of surrendering the courts to Republicans,” Howard said. “These districts are trending more toward Democrats, and [it’s important] for us to continue to explain to them what these Republican priorities are.”
Allison Stevens is a reporter for the States Newsroom Network of which NC Policy Watch is a member.