Lawmakers who supported trial censured
Local Republican parties move against dissension
WASHINGTON – Several members of Congress have faced criticism and even formal censures from their state and county Republican parties because they voted to support the impeachment of former President Donald Trump, including Sen. Pat Toomey, R-Pa.
One Republican official in Pennsylvania said Toomey was not sent to Congress “to do the right thing.” Washington County Republican Chair Dave Ball ripped on Toomey for justifying his vote to convict Trump on the charge of inciting the violent Jan. 6 riot at the United States Capitol.
“We did not send him there to vote his conscience,” Ball said in an interview with CBS Pittsburgh’s KDKA-TV. “We did not send him there to do the right thing or whatever he said he was doing. We sent him there to represent us, and we feel very strongly that he did not represent us.”
York County, Pennsylvania, Republicans voted to censure Toomey over the weekend, arguing that he is out of touch with the “core beliefs of the people of Pennsylvania,” and he also faces possible censure from the state’s Republican Party, which is planning a meeting to discuss censure, The Associated Press reported.
Responding to the potential for backlash from his constituents, Toomey said on Saturday that he knew most Republicans would disagree with him, and that his vote did not negate what he said were the successes of the Trump administration.
“The fact that the president did stand up to and against some bad policies and some bad trends – those things can be true and it can also be true that his behavior after the election became completely unacceptable,” Toomey said. “I hope that we get to the point where we can come together as a party and recognize those things.”
The senator, who does not plan to run for re-election in 2022, said of his decision to convict: “As a result of President Trump’s actions, for the first time in American history, the transfer of presidential power was not peaceful . ... I was one of the 74 million Americans who voted for President Trump, in part because of the many accomplishments of his administration. Unfortunately, his behavior after the election betrayed the confidence millions of us placed in him.”
The Senate acquitted Trump over the weekend. All 50 Democrats and independents voted to convict, but only seven Republican senators broke with their party, not enough to reach the necessary threshold of 67 senators. The trial came after 10 House Republicans voted to impeach Trump in January, siding with House Democrats.
Trump was charged with one article of incitement, with the House impeachment managers arguing that his rally speech prior to the riot and months of pushing baseless election fraud claims egged on his supporters to ultimately attack the Capitol. Trump’s defense team said he was exercising his right to political speech and that the impeachment trial was unconstitutional because it took place after Trump had left office, despite the House initiating the process when he was still president.
Here are some of the other Republicans who have faced censure and rebuke for their support of impeachment:
Sen. Richard Burr, R-N.C.
Burr’s vote to convict Trump came as one of the most surprising because he had not previously indicated he would convict. Burr, who is also not seeking reelection in 2022, drew gasps and glances from around the chamber when he voiced his “guilty” vote on the article of incitement of insurrection.
The North Carolina Republican Party Central Committee voted unanimously to censure Burr over his vote on Monday, arguing the impeachment was unconstitutional.
“Tonight, the North Carolina Republican Party Central Committee voted unanimously to censure Senator Richard Burr for his vote to convict former President Trump in the impeachment trial which he declared to be unconstitutional,” the party said in a statement.
“By what he did and by what he did not do, President Trump violated his oath of office to preserve, protect, and defend the Constitution of the United States,” Burr said in a statement after voting to convict.
Sen. Mitt Romney, R-Utah
Romney’s vote to convict Trump was not a surprise, because he joined Democrats in an earlier vote to affirm that the trial was constitutional to pursue, and because he had previously voted for Trump’s conviction in an impeachment trial. The former Republican presidential nominee was the only Republican to vote to convict Trump of one article of impeachment over his dealings with
Ukraine in January 2020.
While some Republicans have circulated a petition calling for the state GOP to censure Romney, Utah Republican leaders have signaled they are accepting of Romney’s vote. CNN reported that the Utah GOP released a statement acknowledging that its two senators voted differently, and calling it a “diversity of thought.” Utah Sen. Mike Lee voted to acquit Trump.
Sen. Bill Cassidy, R-La.
The Louisiana Republican Party had already criticized Cassidy’s vote supporting the constitutionality of the impeachment trial before it began, and would later unanimously censure him for his vote to convict.
“Our Constitution and our country is more important than any one person. I voted to convict President Trump because he is guilty,” Cassidy said of his vote.
Sen. Ben Sasse, R-Neb.
Sasse refused to vote for Trump in 2020 and condemned his lies that many say led to the Jan. 6 riots at the Capitol, which Trump was charged with inciting.
After reports the Nebraska Republican Party was considering a censure resolution against Sasse ahead of the trial vote, he released a video this month saying he would always vote his conscience even if that ran against the party stream. “The anger in the state party has never been about me violating principle
or abandoning conservative policy,” Sasse said in the video.
Rep. Liz Cheney, R-Wyo.
Cheney was one of the 10 House Republicans who voted to impeach Trump in the House, prompting a censure from her state GOP earlier this month and intense backlash from House Republicans who called for her to be removed from her position as chair of the Republican Conference.
In a statement responding to her censure, Cheney said that her vote to impeach trump “was compelled by the oath I swore to the Constitution.”
“I will always fight for Wyoming values and stand up for our Western way of life,” the third-ranking Republican leader continued. “We have great challenges ahead of us as we move forward and combat the disastrous policies of the Biden Administration.”
Rep. Adam Kinzinger, R-Ill.
Kinzinger, who has been rebuked by state party officials as well as his family and church, was censured by the LaSalle County Republican Central Committee in his district.
“I prefer not be censured, but I really, really will not lose an ounce of sleep if I am. Not even an ounce,” Kinzinger said, according to the Chicago Tribune.
WASHINGTON – An expected wave of retiring judges will give President Joe Biden a chance to address a startling lack of diversity on the federal bench, advocates say, a shift that eventually could have implications for future nominees to the Supreme Court.
Biden repeatedly promised during his presidential campaign to name a Black woman to the nation’s highest court for the first time in history if a seat opens on his watch. But that commitment has drawn attention to a lack of Black women on U.S. appeals courts – the pool from which Supreme Court justices usually are drawn.
With several high-profile federal judges announcing in recent weeks that they will step away from active service, Biden will face enormous pressure to not only make good on his promise of a historic Supreme Court nomination but also to bring a degree of racial balance to the lower courts where the vast majority of federal cases are decided.
Four Black women serve as appeals court judges out of 179 judgeships – all of them older than 65, according to the Federal Judicial Center, the research arm of the federal court system. There are 35 Black female federal district court judges, according to the center’s data, just more than 5% of the total number of judges.
“The path that other Supreme Court justices have taken has been limited for Black women,” said Aimee Allison, founder and president of She the People, a group that advocates for women of color in politics. “Oftentimes, the path has been blocked.”
Biden, a former Senate Judiciary Committee chairman, will soon be able to change that, advocates say. Judge David Tatel, nominated to the U.S. Court of Appeals for the D.C. Circuit in 1994, announced last week that he would take “senior status,” a form of semi-retirement. Biden nominated another judge on that court, former Supreme Court nominee Merrick Garland, as his attorney general – opening another seat.
That has created multiple paths for Ketanji Brown Jackson, a federal district court judge in Washington who is widely expected to ascend to the appeals court and who has emerged as a leading candidate to be Biden’s first Supreme Court nominee.
Court observers point to the New York-based U.S. Court of Appeals for the 2nd Circuit, where two judges have announced they are taking senior status, as another place where the Biden administration could have an impact. Another is the Chicago-based 7th Circuit, where Senate Republicans ran out the clock on Myra Selby, nominated by President Obama in 2016 and the first Black woman to serve on Indiana’s Supreme Court.
When President Donald Trump took office in 2017, Selby’s nomination was dropped. Trump picked Amy Coney Barrett for the 7th Circuit spot and, four years later, nominated Barrett again – for the Supreme Court.
“We weren’t in good shape before, but we’ve gone down in numbers,” said Fatima Goss Graves, president of the National Women’s Law Center. “It actually provides an opportunity to shine a light on the rich and deep base of Black women attorneys in this country whose names and work may not have been as visible.”
Breaking barriers
Supreme Court nominees don’t have to come from appellate courts, but they usually do. Only one current justice didn’t hear appeals – Elena Kagan – and she was the U.S. solicitor general. As the federal government’s top lawyer arguing cases before the high court, the position is so closely intertwined with the Supreme Court that it’s sometimes referred to as the “10th justice.”
“What’s so distressing is the traditional pipeline to the Supreme Court is bare” when it comes to Black women, said Leslie Proll, a veteran civil rights lawyer who advises the NAACP on judicial nominations.
Biden first raised the prospect of nominating a Black woman for the court during a debate days ahead of the Feb. 29 presidential primary in South Carolina last year. The former vice president had performed poorly in early Democratic nominating contests in Iowa and
New Hampshire. His win in South Carolina – a state with a large share of African American voters – was key to his comeback.
“I’m looking forward to making sure there’s a Black woman on the Supreme Court, to make sure we in fact get every representation,” he said to applause at the time.
Months later, Biden told reporters he was “putting together a list of a group of African American women who are qualified and have the experience to be in the court.” Aides to Biden’s transition told the Wall Street Journal last fall that he would have a short list of candidates compiled by the time he was inaugurated Jan. 20.
A White House spokesman declined to answer questions about the status of that effort.
Trump, by contrast, had released a list of potential Supreme Court nominees during his 2016 campaign in an effort to woo evangelical voters. The courtship worked, and Trump drew from his list and later additions to it for his three Supreme Court nominees.
Not only would Biden’s pledge bring the first Black woman to the Supreme Court, it would also put four women together there for the first time – adding to a bench that includes Kagan, Barrett and Associate Justice Sonia Sotomayor, an Obama appointee who is the court’s first Latina. It would also be the first time two African Americans serve simultaneously: Clarence Thomas is the only Black justice.
Catherine Smith, a professor at the University of Denver Sturm College of Law, said it’s important to address the dearth of Black women on the federal appeals bench for several reasons: Not only is it a pipeline for Supreme Court nominees, but it’s also where a considerable number of federal cases are ultimately decided.
“It is a misstep to have a singular focus on one or two people of color,” said Smith, who wrote a piece for the National Law Journal in December suggesting several Black female scholars for the court. “I think that approach can ultimately lead to a lack of diversity or just a few out of close to 200, as is the case now.”
In the running
Biden’s first opportunity to follow through on his promise would likely arise if Justice Stephen Breyer, 82, retires before the 2022 midterm election. Breyer joined the court in 1994, a year after Justice Ruth Bader Ginsburg, and watched how her decision not to step down before Republicans won control of the Senate in 2014 and the White House two years later resulted in today’s 6-3 conservative majority.
Left-leaning groups have ramped up their calls for Breyer to retire so Biden can nominate a replacement while Democrats control the Senate. Breyer told Slate in December that “eventually I’ll retire” but added that “it’s hard to know exactly when.”
Still, several potential candidates have already emerged:
h Jackson, the federal district court judge, was on Obama’s short list after Associate Justice Antonin Scalia’s death in 2016. At 50, she could serve decades on the court. An Obama appointee who frequently shot down lawsuits filed by the Trump White House, Jackson won Senate confirmation by voice vote 2013, signaling she was not controversial.
She would be the only justice to have been a public defender, answering a call from some who are promoting nominees with more diverse legal backgrounds.
h Leondra Kruger, a justice on the California Supreme Court, worked in the Justice Department for the Obama and George W. Bush administrations. Kruger argued a dozen cases at the Supreme Court during those years before then-Gov. Jerry Brown, a Democrat, made her one the youngest ever named to the state’s high court.
At 44, Kruger also could have a long career on the nation’s highest bench, and she is widely viewed as striking a more moderate path than some of the other Democratic appointees on the California court.
h If Biden looked beyond current judges, the field would widen considerably. Progressive groups such as Demand Justice have offered up more than a dozen names, including Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund; Kristen Clarke, recently nominated to lead the Justice Department’s civil rights division, and Melissa Murray, a law professor at New York University.
“The Supreme Court is in desperate need of lawyers with experience representing real people and the interests of justice and democracy,” said Tamara Brummer, senior adviser with Demand Justice. “Black women have been on the front lines of the fight to protect and defend our democracy, so it’s no surprise that there are a plethora of brilliant Black women lawyers who would bring badly needed experience to the court.”
Had Republicans kept the Senate majority this year, Kruger’s centrist approach may have given her an edge, predicted Frank Ravitch, a Michigan State University law professor. But after Democrats won two runoffs in Georgia to retake control of the chamber, he said, it is Jackson who may have an advantage.
“If McConnell had not blocked so many of Obama’s appointments, you’d already have Brown Jackson on a federal court of appeals,” he said, referring to Garland’s blocked Supreme Court nomination. “There needs to be more diversity on the federal bench than we have and some of that simply is because of many years of systemic exclusion.”
McConnell aides declined to comment but conservatives pushed back on the idea that Trump’s nominees didn’t bring diversity to the federal bench, noting that the former president appointed Judge James Ho, a Taiwanese immigrant, to the 5th Circuit and Judge Amul Thapar, the second Indian American appeals court judge, to the 6th Circuit, among others.
“Trump’s nominees actually demonstrate a great deal of diversity; it wasn’t a matter of attempting to fill certain quotas,” said Carrie Severino with the conservative Judicial Crisis Network. “But look at people he has nominated – they represent a broad range of American experience.”
Challenge vs. opportunity
Trump was slightly more likely than recent Republican presidents to appoint women, according to Pew Research Center data, but far less than Obama. Roughly a quarter of Trump’s judicial appointments were women, compared with 42% for Obama.
The numbers are even more stark for racial and ethnic minorities: About 16% of Trump’s judicial nominees were Black, Hispanic, Asian or otherwise not white, according to Pew. That compares with 18% for President George W. Bush and 36% for Obama. Given the number of Trump judges, advocates said, those percentages had a huge impact.
“Decisions generally are stronger when they grow out of a set of experiences that are diverse,” Goss Graves said. “It speaks poorly of the state of the federal judiciary that it has become less diverse and rapidly so.”