You might think religious-right leaders would be more than satisfied with the Trump Supreme Court justices who overturned Roe v Wade and invited the criminalization of abortion nationwide, but you would be wrong. Religious-right activists are delving deep into the religious views, church attendance, and families of conservative judges considered possible Supreme Court nominees under a future Republican president, and making “red lists” of judges they deem unacceptable.
The effort is being led by the Center for Judicial Renewal, a project of the American Family Association’s political action arm. The Center is led by Phillip Jauregui; as leader of the Judicial Action Group in 2018, Jauregui was so convinced that God had anointed Amy Coney Barrett to the Supreme Court that when Trump instead chose Brett Kavanaugh as his second nominee, Jauregui denounced Kavanaugh as a “usurper” and warned that God would destroy him if he did not withdraw.
Jauregui and AFA’s Walker Wildmon described the justice-vetting effort during Pray Vote Stand, the Family Research Council’s religious-right activist conference held Friday and Saturday in Washington, D.C. AFA Action hosted a luncheon to promote its work and a breakout session focused on the project that is designed to prevent the nomination of any judge who fails to meet the group’s “biblical worldview” or other standards. Jauregui said the effort is especially important given that Clarence Thomas and Samuel Alito—the two most far-right justices—are also the oldest.
“Biblical Worldview” is the first of CJR’s Ten Principles of a Constitutionalist Judge. “In my own experience of evaluating hundreds of judicial nominees and then observing their performance on the bench, I conclude that the greatest predicter of their faithful and constitutional performance on the bench is their ‘worldview’ or ‘Christian faith,’” writes Jauregui on AFA Action’s website. (During Q&A, Jauregui denied that this amounted to an unconstitutional religious test.) Also on the list of principles is “a demonstrable record of courage in order to bring the court back into constitutional alignment in the face of immense pressure.”
Among the issue areas evaluated by CJR is “LGBT Issues,” which Jauregui identified at Pray Vote Stand as a topic that divides this religious-right effort from unnamed other conservatives—presumably the Federalist Society—who might be more committed to dismantling the administrative state than overturning marriage equality. Current Justices Kavanaugh and Neil Gorsuch and Chief Justice John Roberts would not have made AFA’s “green list.”
One of the judges on AFA’s approved “green list” for the Supreme Court is Morse Tan, dean of Liberty University’s law school. Jauregui displayed the first two pages of the CJR’s research summary on Tan, which begins with a “Faith & Worldview” section emphasizing Tan comments about Liberty’s commitment to train “Champions for Christ.” It includes a discussion of his commitment to scripture and “why it is important to teach a Christian worldview to future lawyers.”
Joining Tan on AFA’s terrifying SCOTUS wish list:
- Kristen Waggoner, head of the aggressively anti-choice, anti-LGBTQ equality legal giant Alliance Defending Freedom, which has pushed courts to weaken church-state separation and is now participating in a right-wing project to take ideological domination of the civil service under the next Republican president.
- Mark Martin, former dean of Pat Robertson’s Regent University law school, current dean of High Point University’s law school and a former North Carolina Supreme Court justice who reportedly advised Trump (wrongly) that V.P. Mike Pence had the constitutional authority to impede the Electoral College count.
- Judge James Ho, a Trump nominee to the 5th Circuit who has become notorious as a virtual parody of a right-wing activist, whose extreme opinions read like far-right ideological diatribes; Ho recently wrote that banning access to abortion medication injures anti-abortion doctors because they get aesthetic pleasure out of looking at ultrasound photos.
- Judge Kyle Duncan, a 2018 Trump nominee who People For the American Way concluded was “manifestly unfit,” was confirmed to the Fifth Circuit by Senate Republicans. Before joining the court, he represented Hobby Lobby in a case used by the right-wing SCOTUS majority to declare that corporations can be exempt from laws protecting employee health that run counter to owners’ religious beliefs. He joined other right-wing activist judges in support of a Texas law encouraging vigilantes to use lawsuits to enforce an abortion ban and demonstrated gratuitous disrespect toward a transgender litigant.
- Judge Lawrence VanDyke, a 2019 Trump nominee, was deemed an unqualified nominee by the American Bar Association and an “unqualified ideological extremist” by People For the American Way. As a judge, VanDyke tried to, in the words of a fellow circuit judge, “gut the Equal Pay Act.”
In touting ADF’s Waggoner as a “dream candidate,” Jauregui acknowledged that she had no experience as a judge, but said that a future president could nominate her to a circuit court and then quickly elevate her to the Supreme Court, as Trump did with Barrett.
Very conservative Trump-nominated judges who CJR puts on its “red list” of rejects: Sixth Circuit Judge Amul Thapar, D.C. Circuit Judge Neomi Rao, and D.C. Circuit Judge Justin Walker. Among the “points of concern” cited by Jauregui: for Thapar, that he used transgender litigants’ preferred pronouns; for Rao, that she has “expressed liberal views” on LGBT issues and “problematic views” on abortion; and for Walker, his involvement in his wife’s Global Game Changers nonprofit for underserved children and his wife’s “questionable literary work.”
CJR summarizes its demand this way: “We want a Supreme Court justice with the best long-term, demonstrable record of commitment to the constitutional role of judges, which is to decide cases according to the original meaning of the Constitution and legislative texts, and to never legislate from the bench.”
As Jauregui described the process, the group prepares a comprehensive dossier on potential nominees (20-40 pages), which is not made public. It does make public its 5-10 page summaries and short 1-2 pagers. CJR will use its evaluations to lobby presidential candidates, future presidents and White House counsels, and Republican senators to try to prevent the nomination of conservative judges who don’t meet AFA’s strict standards, and to encourage the nomination of their favorites.
Jauregui says at least 30 religious-right leaders who have signed a letter urging Republican presidential candidates to use the AFA’s standard, including FRC’s Tony Perkins, FRC board chair and former Rep. Michele Bachmann, Christian nationalist “historian” and political operative David Barton, Iowa evangelical operative Bob Vander Plaats, indicted Trump Attorney Jenna Ellis, and anti-Muslim activist Frank Gaffney. Signing on to its standard does not, Jauregui said, mean that other leaders necessarily agree with CJR’s determinations about which individual judges end up on the red or green lists.
The success of the religious right’s Supreme Court strategy relies on their electing a like-minded Republican president and Republican Senate majority, something the AFA’s political arm and other religious-right voter turnout efforts will invest many millions of dollars to try to achieve. The leader of another AFA Action arm touted during Pray Vote Stand, the ivoter.com voter scorecard project, also told attendees that it started including state-level elected judges on its scorecards in 2020.
The right-wing movement’s long-term plan to use domination of the federal courts to achieve their political agenda—and a restructuring of our constitutional order to repeal the New Deal—highlights the importance of the Biden White House and Democratic Senate leaders continuing to fill federal vacancies with excellent, fair-minded nominees. You too can take part in the fight for fair courts.
