WASHINGTON, D.C.—It's probably been a while since most members of the adult entertainment community took social studies or political science in school, so here's a short refresher course: The United States government is divided into three branches—the Executive, the Legislative and the Judiciary—and the reason the Founders set it up that way is so that each branch can act as a "check" and "balance" on the other two. That means that while Congress (Legislative) can pass new laws, the President (Executive) can veto them, or when the Supreme Court (Judiciary) rules that a previously passed law means something Congress (Legislative) didn't intend, Congress can pass a new law better defining the meaning that older law was meant to convey. (Fun stay-at-home game: Think up other ways the three branches can conflict with each other!)
That's how it's supposed to work—but Senate Majority Leader Mitch McConnell has decided that he knows better than the Founders regarding what's good for the U.S., so he's decided to remake the American Judiciary into a group of apologists/activists for the Christian Nationalist movement and the lunatic right-wing fringe.
Start with the fact that every single judicial nominee that McConnell has put before the Senate for confirmation has either been a member of the ultra-conservative Federalist Society, has been hand-picked by Federalist Society Executive VP Leonard Leo, or both.
"The Federalist Society was started in 1982 by conservative law students at Yale and the University of Chicago who wanted to create a counterbalance to what they saw as the liberal orthodoxy of law faculties around the country," wrote Sophie McBain in 2018 in The New Statesman, noting that one of its first faculty advisors was Antonin Scalia, who became a Supreme Court Justice four years later. "Today the Federalist Society has 70,000 members and a presence on almost every university campus and in every major city ... The Society grew up with its first student members, as they began taking up senior jobs in government and the judiciary, providing the Federalist Society with a network of like-minded lawyers that extends right up to the Supreme Court and the President (the White House lawyer Don McGahn is a member of the Federalist Society) and across campuses, companies and local courts around the country." (McGahn is gone now, but rest assured, equally authoritarian Society attorneys have replaced him.)
It was bad enough that McConnell ignored important, life-saving legislation, shoving it aside in his mad dash to fill every currently open judicial vacancy with a Federalist Society-approved judge, but now he's gone even further.
According to the website WhiteHouse.gov, as of November 6, 2019, "President Trump has now had 158 judicial nominees confirmed to the Federal bench—a historic transformation of the judiciary. President Trump has nominated and had confirmed two Supreme Court justices, 44 Circuit Court judges, and 112 District Court judges," all of whom serve for life unless they either die, are impeached or choose to resign.
Hidden in that quote is the point: Trump, "guided" by his ultra-conservative and Christian Nationalist handlers, and with the able assistance of Mitch McConnell, is aiming to create "a historic transformation of the judiciary."
Part of the problem is, there are currently 77 federal judgeships that are currently unfilled, and it's McConnell's intention to ram through the current slate of 41 nominees awaiting a Senate hearing, while continuing to ignore the important "People's business" such as passing legislation to help get the coronavirus pandemic under control, funding research for a COVID-19 vaccine, making sure funding is available for the myriad small businesses that have essentially been put out of business (or are severely faltering) due to the pandemic, dealing with climate change in the long term, supporting/promoting "green" energy sources, dealing with industrial pollution—the list goes on and on.
But turning the country's federal judiciary into a rubber stamp for conservative/religious causes is going to take more than a mere 235 Trump appointees, since there are 861 federal judges altogether, from the Supreme Court on down, deciding cases—so according to attorney Elizabeth Dye, writing for the website AboveTheLaw.com, good ol' Moscow Mitch "has turned his eye to a list of Reagan and George H.W. Bush appointees he hopes to persuade to trot out to pasture in favor of fresh horses. In fact, they should canter out to the field immediately, tossing their gavels to the Federalist Society’s Brownie and Boy Scout Troops on the way out the door."
"My motto for the year is leave no vacancy behind. That hasn’t changed," McConnell promised conservative talk radio host Hugh Hewitt last month. "The pandemic will not prevent us from achieving that goal."
According to an article on BusinessInsider.com, McConnell and other conservatives have been circulating a list of more than 80 judges that they're hoping will self-boot, including "Supreme Court shortlisters from GOP administrations of yesteryear, like James Harvie Wilkinson, a President Ronald Reagan-era appointee from the Richmond-based 4th Circuit US Court of Appeals; Frank Easterbrook, another Reagan pick on the Chicago-based 7th Circuit U.S. Court of Appeals; and Ricardo Hinojosa, a federal judge in McAllen, Texas, who has been on the bench since 1983.
"Several barrier-breaking judges are also now eligible to leave their full-time jobs, including Juan Torruella, an 86-year old Reagan pick who remains the only Hispanic to serve on the 1st Circuit Court of Appeals in Boston, and 81-year old Ilana Rovner, whom George H.W. Bush tapped to be the first woman to join the 7th Circuit."
So let's add it up. If McConnell is successful, at least 310 new Trump-appointed judges will be in federal courtrooms deciding cases before January 20, 2021 (aka Inauguration Day)—and that's really bad news for the adult entertainment industry.
To set the stage, let's consider some of the issues currently before the Supreme Court. Of course, there's the issue of whether local and federal prosecutors can issue subpoenas for Trump's and his companies' tax returns to see if he's defrauded the federal government lately. Then there's the issue of whether churches and "religiously-run" companies can avoid the congressional mandate that they arrange for their female employees to obtain birth control at no charge. Then there's the question of whether a transgender woman working at a funeral home could be fired simply because she was trans. (She died a couple of days ago, so they may moot that case, more's the pity.) How about whether international aid agencies can be forced to denounce prostitution lest they have their federal funding pulled? How about whether states can make it so difficult to get an abortion by, for example, requiring a clinic's doctors have admitting privileges at a local hospital, that abortions services are essentially unavailable in that area? The list goes on and on—and that's just the Supreme Court's current docket!
Now, despite conservatives and pro-censorship groups trying their best, there hasn't been a federal obscenity prosecution of a recognized adult studio or moviemaker or website in nearly ten years, but considering how vague the Supreme Court's "definition" of obscenity is, is the question of whether a particular work is "obscene" really something that the adult industry wants to put in the hands of a Trump-appointed Federalist Society-approved judge? And let's not forget that the Supreme Court has been on a precedent-shattering kick lately. After all, they decided that a 40-foot high Christian cross on government land wasn't an unconstitutional "establishment of religion" simply because it had been there for a long time, they decided that political parties drawing redistricting maps in states to favor the party in power just wasn't their duty to proscribe, and they sidestepped finding that a Colorado baker had violated civil rights laws by refusing to make a cake for a gay couple, declaring that the Colorado Civil Rights Commission was prejudiced against the baker when it clearly wasn't.
The main problem will be (and to a certain extent is) that despite the fact that the First Amendment rights of free speech and press contains no exception for sexual content, Congress over the past century or so hasn't had much problem putting unconstitutional limits on that speech—for recent examples, think FOSTA/SESTA and Craigslist personal ads, the Child Pornography Prevention Act which attempted to criminalize young-looking performers in adult videos, and on and on. Think the Federalist Society judiciary would even consider overturning such laws, or would hesitate for a moment to find new ways to persecute and prosecute adult content? And remember, Miller v. California isn't written in stone; the Supreme Court has the power to alter or even declare that ruling "inoperable," as disgraced President Nixon used to say.
And how will free-thinking citizens feel when/if Trump aggregates more personal power to himself, on his way to becoming the country's first dictator—and the courts somehow manage to be okay with that? Just food for thought...
