In 1970, Nebraska Senator Roman Hruska defended one of President Nixon’s Supreme Court nominees, Judge G. Harrold Carswell, from charges that he had a mediocre record on the bench. “There are a lot of mediocre judges and people and lawyers,” Hruska famously said. “They are entitled to a little representation, aren’t they?”
If only President Trump’s judicial nominees were merely mediocre, like most of those in his first term. Now, Trump is nominating candidates for federal judgeships who run away from the very Constitution they will, if confirmed, swear to apply and uphold.
For more than a decade, we’ve been “shocked but not surprised” by what Trump and his craven lackeys have said and done. It’s important that the shock continues. If it recedes—if we lose our sense of outrage—we’re really in trouble.
Even so, it takes a lot to shock me these days. Trump’s assaults on the body politic—like a boxer with a punching bag—come so fast that it’s impossible to keep up. But every so often, we need to slow down and smell the swill.
So consider this April 29 exchange in the Senate Judiciary Committee between Delaware Senator Chris Coons and John G.E. Marck, a former assistant district attorney in New York City and now the Acting U.S. Attorney for the Southern District of Texas:
SENATOR COONS:
Mr. Marck, if I might, just tell me about the 22nd Amendment. What does it provide?
JOHN G.E. MARCK:
The 22nd Amendment—Senator, my career has mostly been in criminal prosecution. I haven’t had an opportunity to use that one specifically.
COONS:
Anyone able to help him on the 22nd Amendment to the United States Constitution.
ANOTHER JUDICIAL NOMINEE:
Senator, I believe it is the amendment that deals with a two-term limitation.
COONS:
Correct. It states that no person shall be elected to the office of the president more than twice.
COONS:
Mr. Marck, is President Trump eligible to run for president again in 2028?
MARCK:
Senator, without considering all the facts and looking at everything depending on what the situation is, this, to me strikes—is more of a hypothetical of something that could…
COONS:
It’s not a hypothetical. Has President Trump been elected president twice?
MARCK:
President Trump has been certified the President of the United States two times.
COONS:
Is he eligible to run for a third term under our Constitution?
MARCK:
I would have to review the actual wording of it.
COONS:
All I need to tell you is that the language of the constitutional amendment makes it clear that no, he is not eligible to run for the third term.
Anybody else brave enough to say that the Constitution of the United States prevents President Trump from seeking a third term? Anybody willing to apply the Constitution by its plain language in the 22nd Amendment?
Nobody.
All right, let’s move on.
Anyone hoping to be a judge must know—and be held to—some basic American history: George Washington declined to run for a third term and that informal precedent was followed until Franklin D. Roosevelt during World War II was elected to a third and fourth term. This was not popular, even among many Democrats, so a constitutional amendment was passed and ratified that, with 100 percent clarity, limits a president to two terms.
The Orwellian obtuseness about basic facts is a defining feature of the Trump Administration, as we saw again when Connecticut Senator Richard Blumenthal moved on to January 6. He asked another nominee, Michael Hendershot: “Was the Capitol attacked on January 6?” Hendershot replied: “It’s a matter of significant political controversy.”
That’s it? This smug young rightwinger who could be on the bench for 50 years thinks there was no attack?
Like earlier Trump nominees to the federal bench and other posts, Marck, Hendershot and two other Trump nominees for the U.S. District Court—Arthur Jones, and Jeffrey Kuntz—all refused to say Joe Biden won the election. Instead, they used the same stock phrase their White House handlers insisted upon: “President Biden was certified the winner.”
Even the committee’s ancient chairman, Iowa Senator Chuck Grassley, thought this was stupid. When Senator Richard Blumenthal was speaking, Grassley can be heard on an open mic off camera asking, “What would be wrong if they said Biden won?”
Blumenthal articulated the obvious but nonetheless shocking explanation for “what would be wrong.” He told the cowering, gutless nominees:
“You’re unwilling to use that word [won] because you are afraid. Afraid of what? President Trump? That is exactly what we do not need on the federal bench today. We need jurists who are fearless and strong, not weak and pathetic.”
Blumenthal was speaking slowly, and, I thought, sincerely:
“I can’t tell you how disappointed I am. We can disagree on issues of law. We can disagree on issues of fact, but for you to simply avoid a factual and responsive answer, I think, is a disrespect to this committee as well as to us.”
Rhode Island Senator Sheldon Whitehouse was more direct:
“I hope you realize how ridiculous the four of you look spouting these preposterous, canned answers in a forum in which you’re supposed to tell the truth and you’re supposed to demonstrate the judicial capacity to make independent factual decisions in hard cases.
If you can’t even sit here and say that Joe Biden won that election or that the Capitol was attacked, what if a hard case comes your way as a judge? Let’s say the Trump administration is bearing down on that. Why would we ever believe that you would give the litigants a fair hearing and a fair decision if the executive branch was leaning in on you [as it’s] leaning on you to give these ridiculous answers today?
It would be nice if you could tell your executive branch handlers: I don’t need to make myself ridiculous at your direction.”
These nominees are backed by Republican senators who mostly have secure seats but prefer to bend the knee, anyway, violating their own oaths to defend the Constitution. Unless something unforeseen happens, the four who appeared on April 29—two from Texas, one from Florida, one from Ohio—will be confirmed on a 12-10 party line vote.
You should know the names of all of the Republicans on the Judiciary Committee so you can remember who thinks it’s OK to have a judge who might try to figure out how to let Trump run again. Maybe Trump will be prevented from trying to do so, but “attention must be paid” (to quote from Death of a Salesman, enjoying another Broadway revival), to which senators could countenance it, and when they’re up for reelection:
- Chuck Grassley (Iowa): 2028
- Lindsey Graham (South Carolina): 2026
- John Cornyn (Texas): 2026
- Ted Cruz (Texas): 2030
- Josh Hawley (Missouri): 2030
- Thom Tillis (North Carolina): Retiring
- John Kennedy (Louisiana): 2028
- Marsha Blackburn (Tennessee): 2030
- Eric Schmitt (Missouri): 2028
- Katie Britt (Alabama): 2028
- Ashley Moody (Florida): (Took Marco Rubio’s seat in 2025)
There’s always a chance that Tillis (who has bouts of integrity) and one other Republican will stand up for the Constitution and the rule of law. We shouldn’t hold our breath, but there’s no point in giving up, either. Let these senators know that they must not vote for nominees who won’t back the Constitution and don’t have the independence to say who won the 2020 election. Those are the absolute minimal standards for a lifetime appointment to the federal bench.
Here is the full video of the hearing.
Subscribe to OLD GOATS with Jonathan Alter, where this article originally appeared.
