The Biden Administration And Judges – With Tom Jipping: Who is on track to confirm more judges: Trump or Biden? Why are Biden’s judicial nominees bad for the country? Who has resisted the confirmation of judges more: Republicans or Democrats? Are the Democrats determined to capture the judiciary? Tune in to hear an important update from Tom Jipping at the Heritage Foundation!

Air Date: 08/31/2021

Guest: Tom Jipping

On-air Personalities: David Barton, Rick Green, and Tim Barton


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Transcription note:  As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.

Faith and the Culture

Rick:

You found your way to the intersection of faith and the culture. Thanks for joining us on WallBuilders Live where we take on the hot topics of the day from a biblical, historical, and constitutional perspective. We’re here with David Barton, America’s premier historian and our founder at WallBuilders, Tim Barton’s with us, national speaker and pastor and president of WallBuilders, and I’m Rick Green, former Texas legislator and America’s Constitution coach.

You can find out more about all three of us at wallbuilderslive.com. That is also where you can get archives the program if you missed any shows last few weeks. Again, wallbuilderslive.com, and that’s also where you can make a contribution, and that means a lot. Because we’re a listener-supported program, so every time you make a contribution, we’re able to reach more people. Send that into wallbuilderslive.com, easy to make a one-time or monthly contribution right there online.

Alright, David and Tim, later in the program, Tom Jipping will be with us from Heritage Foundation. We’re going to be talking about judges today. And it’s interesting I haven’t been thinking about judges lately. Man, we talk so much about judges over the last four years, and we’ve talked about some cases in the last few months. 

But it’s just been not even on my radar with all the other whack amole issues that we’re dealing with. But has this president been able to do with the judiciary for the Left what Donald Trump was able to do in the four years that he had it for those of us on the Right, what do you guys think?

David:

Yeah, I saw an article by Tom where that he was covering this, and I was really shocked at the numbers. But Tom is really good on this. And just to back up for a minute. The first Supreme Court case I ever was involved with was with Tom Jipping. We worked on it together. 

I remember we set up all night working on the brief together, we got it all done. And Tom has been involved in judicial issues for decades literally. And so this is something he’s cared about. This is something he’s watched very, very closely. And I mean, he’s such a stellar guy.

Tom Jipping

Actually, back a number of years ago, 25 years ago, when you had Tom DeLay, and Dick Armey and Newt Gingrich and those guys running the House, they really were looking at impeaching bad federal judges. And so Tom and I spent a lot of time together working on impeachment issues, working on impeachment history, getting documents ready for senators and for representatives and showing the history and what the Founding Fathers said. So Tom’s got a big background in this.

And so I was really captured with an article he had written, where that he was quoting Democrats complaining about what Trump was doing. Because if remember, Trump throughout his presidency spent a lot of time on getting judges appointed. They put more attention on that than any president I’ve seen in my lifetime. 

And they broke all sorts of records. So instead of just getting all the lower courts filled, they were getting the Courts of Appeals filled which is I mean, that’s kind of like the Supreme Court for that circuit. So they were putting attentional higher level judges. They had their justices ready to go when the Supreme Court vacancy came up. 

They just put a lot of attention on it. And they really did a lot of good screening to be able to get the best people there. And it was hard for the Democrats to stop and need those nominees because they were well qualified even by the American Bar Association.

And so Trump had a lot of emphasis in on that. And, man, from the time he got in, they started filling vacancies. When Obama left office, in addition to the normal vacancies, there was like 100 more vacancies at the Federal Judicial level that hadn’t been filled. So Trump had a lot of places to fill, and he put time and attention on it. 

And the Democrats, I mean, they were just so many quotes of them how wrong this is for him to put so many judges on in, to rush these judges through in his first year. And so all these quotes, well, as it turns out, this is exactly what the Democrats have done under Biden, that they in this period of time have been…

Hypocrisy

Tim:

Wait a second. Wait a second. Are you suggesting that this might be hypocritical or maybe that they weren’t intellectually honest in their accusations against Trump? Wait a second. That just seems like too much right now, sir. I’m not sure that the Democrats would stoop to that level or maybe extreme leftists or politicians in general, politicians are noble individuals, they’re honorable.

Rick:

The next thing you know, David’s going to actually be claiming that there are people out there making laws for the people to have to follow that the aristocrats themselves are not following like, I don’t know, mask, maybe not going to restaurants, not leaving your home…

David:

Well, I tell you, anticipating that one of you was going to bring up this argument, that one of you was going to make…

Rick:

Tim did it first. I’m pointing Tim.

David:

Believing that one of was going to do that, I was fully prepared, and I pulled up a definition of hypocrisy. It’s a great definition. And it says that hypocrisy is pretending to be what one is not or pretending to believe what one does not believe and it contradicts what you actually do believe and what you actually do, especially it gives you the assumption or appearance of virtue. 

So you’re feigning all this outrage over something that you really think is a virtue when you do it, but it’s just not a virtue when somebody else does it. And that’s where the Democrats are right now.

And now, granted, Biden’s only been in office, what are we looking at eight months now. And so at this point, eight months in, he’s already got more judges move through the process. And this isn’t a 50/50 Senate. He’s got more judges move through the process than what Trump had at this time. And so all these guys who objected to Trump trying to push people through in the first part of his term, they’re doing the same thing.

Now, granted, Trump got a whole lot done in four years. And so we’ll see whether these guys can last it out four years, or whether we can maybe get the senate back in a year or so and stop some of this. But at this point, they’re moving forward. And so I thought, you know, this is a great article. 

From the Heritage Foundation

Tom Jipping is a great guy on this. This is something he lives and breathes. This is something he’s been doing for decades. And so Tom Jipping from Heritage Foundation, really good guy to kind of look on the inside of what the Democrats are doing with judges right now.

Rick:

He is the senior legal fellow for the Edwin Meese Center for Legal and Judicial Studies over at the Institute for Constitutional Government at Heritage Foundation. Tom Jipping, when we return how WallBuilders Live.

A Moment from AMERICAN HISTORY

This is Tim Barton from WallBuilders with another moment from American history. The Second Amendment to the Constitution, which guarantees to every individual the right to keep and bear arms has been targeted for years now by those who are determined to dismantle the individual right to self-protection. Opponents argue that only the militia, the military, and law enforcement are to have and use firearms.

But those who wrote the Second Amendment strenuously disagreed, including Founding Father Richard Henry Lee, a signer of the Declaration, a president of the Continental Congress, and one of those who actually frame the Second Amendment. He declared “To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young how to use them.”

For more information about Richard Henry Lee, in the history of the Second Amendment, go to wallbuilders.com.

Rick:

Welcome back to WallBuilders Live. Thanks for staying with us. Always good to have Tom Jipping with us. In fact, I quote you I’m really about twice a week with the “ignorance is curable”. Just so you know, I’ll give you credit once in a while too. Tom, thanks for coming back on, man.

Tom:

Thanks very much for having me.

Rick:

I even have a slide with that on there and your name, so just so you know. Things you have said here on WallBuilders Live have been memorable, and are still with us, and we’re still using them.

Tom:

That’s great.

The Confirmation of Federal Judges

Rick:

Anyway, well, hey, let’s talk about the confirmation of federal judges happening right now under the Democrats, where, what are we, eight months in are ready. You know, you had an article in National Review about the process that they’re doing. What are the numbers like?  Have they approved as many judges at this point that Trump had done at this point?

Tom:

Well, of course, with everything going on today, Afghanistan and everything else, other very important issues and sometimes get pushed to the back seat. But of course, as I’m sure you know, and your listeners, the appointment of federal judges over time is probably the most important issue related to who governs this country, what our values are.

And back when President Trump was in office, of course, Democrats and the Left complained constantly about how hard he was pushing, about how many judges he was appointing, about how fast the Republican Senate was processing his nominees and all of that. And so it’s fair to ask well, if that’s what they said how they said this the process ought to operate, what’s going on today now that there’s a Democrat in the White House, and technically Democrats run the Senate?

Rick:

Yeah, it’s all up to them now.

Tom:

Well, in the fact is President Biden is making more nominations. More nominees are having Judiciary Committee hearings, and the Senate is confirming more nominees than at this point in the Trump administration. The Biden administration and their supporters on the Left are determined to capture the judiciary and make it another political branch so that they can get their job done whether Congress does it or not.

Rick:

You’re watching these nominations and know a lot more about these judges than we do. I haven’t been paying enough attention to it. I wish I had been paying more attention. 

Trump Did Great In This Area

But Trump seemed to do a phenomenal job in not just kind of a 50/50, some of the judges were constitutional and some weren’t. How are the Democrats doing on getting through judges that are actually left wing, I mean, that really do buy into their philosophy of government and letting judges basically make law from the bench?

Tom:

Well, that contrast is sent to every single debate about the judiciary since America was founded. Judges come in two categories. One, judges take the law as it is, and follow it where it leads, and the other, judges take the law and turn it into what they want it to be in order to achieve results that they want. That’s been the debate about the judiciary from the beginning.

President Trump, you know, I’ve been working in the area of judicial appointments for almost 35 years and I’ve never seen a president, whether it was Reagan, either Bush, I’ve never seen a president more consistently appointing judges that are within that traditional restrained mold that our country needs than President Trump did. 

He had a team both in the White House and the Department of Justice that really understood how to find candidates who are well qualified, and who are committed to the proper role of judges. And he followed that consistently.

Biden, I think is just as determined to do things in the opposite direction. His political constituencies, especially on the far left they want the judiciary to force upon America an agenda that we would never choose for ourselves, whether it’s abortion, gay rights, or a whole host of other issues. 

The Democrats Political Judges

And they’re determined to get those political judges appointed to the bench. And they’re really following a pace, which I think is unprecedented, and is even faster than what President Trump had done.

Rick:

Now with a 50/50 Senate, how is that working right now? Is Harris having to come in and break ties on these judicial nominees or Republicans going along with it?

Tom:

Well, actually, Harris has had to come in a couple of times to break a tie. I just recently looked at, and as you said, we’re just months into this administration, so there’s a limited number of current nominees to look at. But I just recently took a look at opposition to Biden nominees compared to opposition to Trump nominees. And actually, Republicans are opposing Biden nominees today in greater numbers than Democrats oppose Trump nominees…

Rick:

Wait, wait, wait, Tom, you got to repeat that word for me. You’re telling me the Republicans are actually putting up a loyal opposition better than the Democrats?

Tom:

I couldn’t believe it at first. And so I looked at it and redid the mass about four or five times, Republicans are more consistently opposing and in greater numbers Biden nominees than democrats did to Trump back in 2017 during the same period in his administration. And, you know, I think that’s an important thing. 

I do hope that Republicans not only vote against his nominees though, but really take time on the Senate floor to explain to the country why these are bad judges. That’s the key. Because sure, you know, you’ve got to vote right, I understand that. 

But unless Americans understand the kind of judges we need, and therefore why Biden’s judicial appointees are bad for the country, we haven’t made much progress. But it is true, Republicans so far are taking a stronger stand against Biden’s nominees than Democrats did in 2017.

Educating the Public

Rick:

Tom, I’m glad you mentioned that, because I think sometimes we miss the opportunity, because we know we’re not going to win the vote necessarily, they’re going to get that judge through. But there’s an opportunity here to educate and to bring attention to that very important difference that you pointed out at the top of the program. 

And our Republicans are there, a few of the senators that I know, I’ve seen Cruz do it a few times and Hawley do it a few times, are they taking advantage of that opportunity? I guess, like you said, we’re early. I mean, there haven’t been many of these. But I mean, that’s another stark contrast opportunity.

Tom:

I think they’re starting to, both in the Judiciary Committee in the Senate. As you mentioned, you know, the Senate is 50/50. The committee is evenly split as well. And Republicans who therefore, if the democratic chairman in the committee, and if Vice President Harris breaks a tie in the full Senate, Republicans by themselves don’t have the votes to defeat these nominees. However, they can speak about them and educate our fellow citizens.

That’s the biggest deficit that we’ve had in all of these years that I’ve been studying this process. Republican presidents have not taken the opportunity, and I would include President Trump in this, they’ve not taken enough of an opportunity to tell Americans why the judges they’re appointing are good, and why liberal political judges are bad. We need to understand that more thoroughly so that we can govern ourselves more effectively.

Rick:

That’s so true. So true. Last question for you on the nominees now in the process, like we talked about, is there any effort from Manchin or one of the Democrats that doesn’t always go along with them to influence the this nomination process more? I mean, we’re seeing that with some of the budget stuff, but are they weighing in on the judicial nominee process?

Who’s Influencing Biden?

Tom:

You know, I don’t think so yet, the biggest influence on Biden’s choices of who to nominate as well as the senate decisions about confirmation are coming from the far Left. You’ll hear in the media, people talk about we need diversity on the federal bench, they’ll use that. 

And it’s kind of a code word, because they want you to look in a different direction away from the fact that what they really want are judges who make political decisions. Judges who would make the kind of political decisions they want, they could be green for all they care. They’re changing the subject to try to distract attention away.

But so far, it’s the Left that has really, I think, been driving the process that will probably continue. At the same time, Biden has fewer vacancies to fill than Trump did. So, while he’s plowing ahead at a very rapid pace, he’s going to come up to a point where there just aren’t many vacancies to fill. But so far, he’s very determined. 

He hasn’t made a big public stand about it. But the way the process is actually working, Democrats and their left wing allies are really working together to push this process as fast as possible.

Rick:

Tom Jipping, from Heritage Foundation, the ED Meese Center for Legal and Judicial Studies, really appreciate you, man. Thanks for coming back on WallBuilders Live.

Tom:

Thanks for having me.

Rick:

Stay with us, folks. We’ll be right back with David and Tim Barton.

THE AMERICAN STORY

Hey, guys, we want to let you know about a new resource we have here at WallBuilders called The American Story. For years, people have been asking us to do a history book, and we finally done it. We start with Christopher Columbus and go roughly through Abraham Lincoln. And one of the things that that so often we hear today are about the imperfections of America, or how so many people in America that used to be celebrated or honored really aren’t good or honorable people.

One of the things we acknowledge quickly in the book is that the entire world is full of people who are sinful and need a savior because the Bible even tells us that all have sinned and fallen short of the glory of God. And yet what we see through history, and certainly is evident in America is how a perfect God uses imperfect people and does great things through them. The story of America is not the story of perfect people. 

But you see time and time again how God got involved in the process and use these imperfect people to do great things that impacted the entire world from America. To find out more, go to wallbuilders.com and check out The American Story.

Rick:

We’re back here on WallBuilders Live. Thanks for staying with us. Thanks to Tom Jipping for joining us from Heritage Foundation. Back with David and Tim, and yeah, exactly what you guys were saying at the beginning of the program, I mean, it’s do as I say, not as I do. 

You guys are evil for putting through your judges. But now it’s my turn, so I’m going to put through as many as I can. Yeah, as Tim was pointing out earlier, definitely not intellectual honesty being played here.

Tim:

Well, yeah. One of the things that guys we know from politics is that so often politician want to do what is politically expedient for them. And one of the things that traditionally the last several decades, Democrats have been much better than Republicans at playing a more strategic long game, at recognizing where there is value and what’s more important, and finding some of those battles. 

Dems Desire to Take Over

This is why if you look at the education system, if you look at college campuses, by and large, the vast majority of professors are Democrats, and by vast majority, like vast in the 90 plus percentile are Democrats. This is where you see the Democrats have cared about education system, and so they’ve invested themselves taking this over.

This is where it what’s politically expedient is in their mind, it’s almost the Machiavellian, the end justifies the means, that we will do what is necessary for us to help accomplish our goal on end. 

And so we need to take the other side is bad and evil, and we’re going to be dishonest in the way we’re doing that. But that’s okay, because we’re trying to accomplish our goal, which is really good, and it’s politically expedient. And this is what you’ve seen.

But guys, I thought one of the things that Tom Jipping pointed out was so interesting is that if you look over the last several decades, there has not been a republican president or maybe any president who has been more consistent in the judges that were nominated. 

Now, that’s remarkable. We know some of the people who were actually involved in that process. We’re very good friends with some of them who were vetting some of those judges.

But to think about the last several decades and actually, even if you look at the Supreme Court, some of the justices that we’ve had over the last several decades, some of the worst decisions we got came with votes coming from Supreme Court justices that were put there by a Republican president.

 And we certainly can look now and see some of the individuals that Trump put on the Supreme Court and we can question at least one, maybe two of them, we’ll see how it pans out going forward. There have been a few things that have already happened that are not great. Certainly, there have been some good decisions.

But nonetheless, if you look at federal judges, the fact that nobody has been more consistent than President Trump is remarkable. And actually, guys, one of the things that we talked about initially, one of the reasons we supported him was because we thought if it was going to be a roll of the dice, we didn’t know what kind of leader is going to be. But we knew that the judges he would appoint would be much better than a judge that Hillary would appoint. 

Trump’s Nominees

And that’s why we were supportive of the Trump presidency initially. And so then to look back and see that actually, yeah, in fact, the judges he appointed were by far the most consistent with a constitutional perspective. It’s a really interesting thought, again, just thinking that came from Donald Trump, not from another Republican president over the last several decades.

David:

One of the things I think that stands out to me when I look at what the Democrats are doing right now is, I think they learned from watching Donald Trump. And quite frankly, when you look at the Biden administration, even though they have a 50/50 Senate, they have been very successful moving forward much of their agenda. 

And the biggest impediment to the Biden administration so far has been Trump judges. Now it’s not the Trump judges have singled out Biden. I have an article here that I pulled down off a very conservative website, national website, I’m not going to give its name, everybody would recognize it. And the headline says “Federal judge hands Biden ‘major loss,’ orders Biden to revive Trump-era immigration policy”.

And so as you read this, this is the hold in Mexico or the thing in Mexico policy, they call it Migrant Protection Protocols, it’s officially called MPP. But this is what Biden has not been following. He’s not been letting the people stay in Mexico until their cases heard here. It’s been bringing across the border. 

And so this judge says no, can’t do that. And so it’s pointed out that this is a political thing. Well, that really disturbed me, because I don’t want a Trump judge coming in and overruling politics and saying, I don’t like the politics. So let’s get the stop.

So I read further in the article and it turns out, that’s not what the judge said at all. What the judge said is, what you have done is you have violated the Administrative Procedure Act using an executive order to change federal policy. I’m not telling you that you can’t change the policy. I’m telling you, you can’t do it the way you did. 

You have to follow the law. And so this is not a Trump judge saying, hey, here’s the outcome we want and go do this. He said, you didn’t follow Section 1225, which gives directions on how you change policies. You didn’t follow the other stuff. So it was really good.

Two Kinds of Judges

I was really pleased to say that this Trump judge was going back to upholding the law, doing what the law says and making Biden follow the law, not just coming out with political outcomes. And so that’s a really big thing. And that’s, as Tom pointed out, you only got two kinds of judges, those who want to follow the law and those that want to make the law. And it’s really good to have those that want to follow the law.

Tim:

Well, and this is why there should be battle for that and was also interesting that he pointed out that if you look in the Senate, Republican senators are more consistent in greater numbers opposing Biden’s nominees than Democrats opposed Trump’s nominees. And remember, there was major opposition to some of these Trump nominees, Kavanagh, not being the least of them, some major opposition that took place to some of these Trump nominated judges.

But looking where we are now, one of the things you know, dad, as you pointed out that Tom Jipping said is that judges either want to follow the law or they don’t. And when he says they don’t, it means they’re going to create their own law. And Rick, you’ve talked about this notion of judges, kind of having their own witch’s brew, and it was the “courstitution” is what they follow. 

And it’s that the laws whatever they make it and whatever they want it to be and whatever they say it is. This is what we’ve seen from liberal progressive judges, where they’ve said the Constitution doesn’t really say this, but we’re going to go and let this happen anyway. Those are the kind of people being nominated by Joe Biden right now, or at least by his administration.

And this is why it is so important that we have the right kind of people in the Senate that will uphold the Constitution. I’m saying the right kind of people. I’m not saying a political party. It’s not about what party is there. It’s about having people there that will uphold the Constitution because I don’t care if it’s Republicans. I care well, having people there that are going to uphold the Constitution. We have to have the right kind of people there.

Biden Is Committed

And you know, as he pointed out, Trump was so good consistent, getting the right kind of judges who support the Constitution. Well, as Tom Jipping mentioned, Biden is just as committed in the opposite direction, and with the Left being determined to force their views on America, even if its views that America doesn’t hold or abide by. This is why it is a pivotal time. 

It’s not too soon to even start talking about midterm elections. Why this kind of stuff matters, that we’re recruiting good candidates, that we’re supporting good candidates, that we’re going out and we’re block walking, we’re door knocking, we’re getting involved in these campaigns. Because literally, this is not hyperbole, this is not exaggeration. Literally, the Republic is at stake in many levels on this. We have to get involved in the process.

Rick:

Yeah, Tim, without question, that’s why this is so much more than even just one president. It’s literally the structural institutions getting the court back into its proper place and really training of young people that will want to go into the law and want to become judges that will follow the law and will not become these unaccountable, unelected. As you said, I do call it a witch’s brew, because it just seems so evil, this “courstitution” that they’ve created, but instead let’s raise up a generation of attorneys and jurists.

The Biden Administration And Judges – With Tom Jipping

You know, in fact, I was thinking about that verse, David, I remember hearing it from you for the first time 15-20 years ago, I think it’s an Isaiah about I’ll give you judges, is that the first and lawyers, is at the beginning and then you’ll become the righteous city again. And I thought, wow if we’ve got to fix the courts first and fix the attorneys first, we’ve got a big, big row to hoe here. But it can be done. 

And we’ve seen all those good judges you guys were talking about earlier get appointed by Trump and so many good people. We’ve seen so many Patriot Academy grads go into the law and go to law school and say, yeah, that’s what I want to do. I want to be a good judge. I want to be one of those people that actually upholds the law.

So there’s a lot of good stuff happening out there, folks. Hope that you’ll follow us at wallbuilderslive.com. Make sure you get signed up for our emails. Follow us on social media as well. And enjoy all those archived programs there at the website wallbuilderslive.com. And that’s also where you can make that one-time or monthly contribution. Thanks to Tom Jipping for joining us today and thank you for listening WallBuilders Live.