November 11, 2020 03:00 PM UTC

Judging Gardner’s Legacy

• 3 Comments
• by: Erik Maulbetsch

(Promoted by Colorado Pols)

Written by Madeleine Schmidt & Erik Maulbetsch

After a decade in Washington as a public official, Colorado’s Republican Senator Cory Gardner is going home. The hundreds of judges he voted to approve, however, many of whom are anti-choice extremists, will continue their work interpreting American law for decades to come.

Gardner’s time in the Senate was historically unproductive by the traditional measuring stick of legislation passed. That was never more true than over the last two years, when the upper chamber’s “legislative graveyard” resulted in only one percent of the 15,000 bills becoming law.

On the other hand, under Majority Leader Mitch McConnell (R-KY), the Senate accomplished one specific task at an unprecedented rate: confirming judicial nominees to the federal bench, with a total of 220 judges, including 53 circuit judges and three Supreme Court justices.

In fact, nearly a quarter of all active federal judges in the U.S. are appointees of President Donald Trump.

Looking at only the appellate and SCOTUS judges, nearly all of these lifetime appointments were selected from lists prepared by the Federalist Society, a far-right legal organization that has only become more extreme during the Trump Administration.

Criteria by which the Federalist Society compiled those judges cover a broad range of conservative policy issues, but none more significant than a consistent anti-choice record.

The group’s longtime executive vice president Leonard Leo took a leave of absence in 2018 to advise President Trump on his judicial appointments. Ensuring that those judges rule against reproductive rights has been called Leo’s life’s work. As fellow conservative activist Ed Whelan wrote for the National Review in 2007, “No one has been more dedicated to the enterprise of building a supreme court that will overturn Roe v Wade than the Federalist Society’s Leonard Leo.”

Critical to Trump, McConnell, and the Federalist Society’s joint agenda of packing the courts with anti-choice judges were Republican senators like Gardner who faced tough 2020 reelection campaigns. In spite of Gardner’s uphill battle to reelection in a state that continues to shift to the left, Gardner was a reliable cog in their machine, voting to confirm 98% of Trump’s nominees.

For example, anti-choice extremist Wendy Vitter now has a lifetime seat on the federal bench thanks to Gardner and Senate Republicans. Vitter once led a panel called “Abortion Hurts Women’s Health” (It doesn’t.) which promoted the thoroughly debunked falsehood that abortion causes breast cancer, among other things. The panel also promoted the idea that birth control leads to cervical and liver cancers and “violent death” because “women who take oral contraceptives prefer men with similar DNA, and that women in these partnerships have fewer sexual relations, leading to more adultery, and ‘understandably . . . violence.’” Vitter was appointed by Trump and confirmed to United States District Court for the Eastern District of Louisiana in May of last year.

And there’s many more where that came from.

Judge John K Bush, whom Gardner voted to confirm to the 6th Circuit Court of Appeals in 2017, is an anti-gay blogger who once compared abortion to slavery. In 2019 he upheld a Kentucky law that requires doctors to perform medically unnecessary ultrasounds on abortion-seeking patients, generally using the more invasive transvaginal method, in order to give a detailed description of the fetus and play its heartbeat, if one can be heard. Writing for the majority, Bush said the law aims to “provide patients with information about the development of unborn life and alternatives to abortion.”

And then there’s Sarah Pitlyk, was given a lifetime appointment to the U.S. District Court for the Eastern District of Missouri. Pitlyk served as special counsel to the Thomas More Society, a highly conservative litigation firm that began with the mission of defending anti-choice protesters, stating that “each and every life saved by those valiant souls who patrol the sidewalks outside abortion facilities has a value that is infinite.”

Pitlyk even opposes couples’ rights to have children using assisted reproductive technology (ART) like surrogacy and in vitro fertilization; in an amicus brief opposing California’s ART protections, she asserted without evidence that “the practice of surrogacy has grave effects on society, such as diminished respect for motherhood and the unique mother-child bond.”

Like Pitlyk, Supreme Court Justice Amy Coney Barrett, who was confirmed to the court just days before the November election, holds an anti-abortion ideology so extreme that it extends to in vitro fertilization.

The confirmation of Barrett to the Supreme Court is the crown jewel in abortion foes’ efforts to reshape the judiciary and lay the foundation for legal attacks against reproductive rights.

It was this concern that drove over 60 Coloradans to travel to D.C. last month to protest Barrett’s nomination prior to the November election. Led by several youth activists, the delegation’s members represented a range of progressive issues including racial justice, health care, reproductive rights, and more.

“We already have the highest maternal death rate of all developed nations, which is tripled for our Black and brown communities,” said Kristen Seidel, Board Member of the Colorado Women’s Lobby, in a press release last month. “As Coloradans work to defeat an abortion ban on our state ballot, the expected confirmation of Judge Barrett increases the stakes. We must keep the care of women between them and their medical provider. We are tired of having others impose their beliefs onto our bodies.”

“This man has made a career out of evading his constituents while actively voting against their best interests, which is why our delegation decided to fly over 1600 miles to represent Colorado and make our voices heard in our nation’s capital,” said Tay Anderson, community activist and Denver Schoolboard Director-at-large. “We are outraged at this sham of a confirmation process to fill the vacancy on the Supreme Court. Make no mistake, when Coloradans vote Gardner out of office in November, it will be, in part, because of his role in stacking our courts with right-wing justices that undermine American values.”

Prior to Gardner’s election in 2014, many sounded the alarm to the potential threat he posed to reproductive rights, while Gardner consistently downplayed the issue and distanced himself from his anti-choice record. Now, thanks to him, the highest court in the land now has a solid conservative majority and appears poised to wreck the constitutional right to an abortion. The confirmation of Barrett, Gardner’s final vote before being voted out, is an apt culmination of his legacy.

This piece was first published in the Colorado Times Recorder.