Appointing conservative judges is the one objective that unites the Republican Party. It is one of the few things the Senate can do without the House.
And it is something that immediately impacts public policy because, during times of divided government, many political fights end up being resolved judicially.
That is why Harry Reid abolished the filibuster for lower court nominees in 2014, and why Mitch McConnell, Reid’s successor, has industrialized what’s left of the confirmation process: debate time has been shortened, home-state veto privileges have been curtailed and McConnell has even threatened to make the Senate work weekends if Democrats delay confirmation votes.
You can question the methods but not the results: President Trump has now appointed about as many crucial appellate judges in three years as did President Obama in eight. These judges will serve for life as the final word on the 99 percent of cases that the Supreme Court declines to consider. There is an R-appointed majority on the 2nd, 3rd, 5th, 6th, 7th, 8th and 11th circuits, with the 2nd, 3rd and 11th having been “flipped” by Trump. Last week, the Senate confirmed 13 federal district (trial) judges in just one day.
At least in the short-term, playing hardball makes sense—which is why both sides do it.
Trump may not have the “best people” representing him or running his White House, but he’s picking them to be judges. Indeed, “based solely on objective legal credentials,” left-leaning Vox’s Ian Millhiser says, “the average Trump appointee has a far more impressive résumé than any past president’s nominees.” Millhiser elaborates:
There’s no completely objective way to measure legal ability, but a common metric used by legal employers to identify the most gifted lawyers is whether those lawyers secured a federal clerkship, including the most prestigious clerkships at the Supreme Court. Approximately 40 percent of Trump’s appellate nominees clerked for a Supreme Court justice, and about 80 percent clerked on a federal court of appeals. That compares to less than a quarter of Obama’s nominees who clerked on the Supreme Court, and less than half with a federal appellate clerkship.
Commentators from both sides frequently say that Trump’s judges will be his most important legacy. Perhaps they will, but Trump really hasn’t gotten that many more appointments than his predecessors. He inherited 108 vacancies, while Bill Clinton inherited 111. Trump has appointed 50 circuit judges so far, while in total Obama got 55, Bush II 62, Clinton 66, etc. And there are now only two such vacancies remaining. Trump has filled seats more quickly, and has gotten proportionally more given his short time in office, but his impact is hardly unprecedented, at least in raw numbers.
Consider that the federal judiciary was actually expanded under President Carter to account for increased population. And it’s not as if Carter appointed centrists: the Ninth Circuit acquired its reputation as a liberal bastion because for 25 years it was dominated by Carter’s appointees, among them Stephen Reinhardt and Harry Pregerson. Trump has not been gifted anything like that.
Slate’s Mark Joseph Stern contends that “Trump judges tend to be different than appointees by past presidents of both parties. Many are quite young, some are openly partisan, others are patently unqualified.”
There is a case in Oregon, currently on appeal to the Ninth Circuit, where a Clinton-appointed federal judge held that she has the authority to impose a national program for reducing carbon emissions in order to protect the public’s constitutional right to a stable climate.
Slate’s only story about this ruling praises it.
Judge James Ho [Featured Image], who was appointed to the Fifth Circuit by Trump in 2018 (and who inspired the title of this post), has been frequently criticized by liberal legal commentators, who accuse him of peppering his opinions with conservative political commentary. Yet I recall that, in a recent ruling against the Trump administration’s public charge rule, Judge George Daniels in New York wrote:
The Rule is simply a new agency policy of exclusion in search of a justification. It is repugnant to the American Dream of the opportunity for prosperity and success through hard work and upward mobility.
Whether the sentiment is right or wrong, I haven’t seen any pearl-clutching about this unnecessary editorializing.
Two federal judges have given speeches criticizing President Trump at length for complaining about all of his policies being struck down. Stern praised one of the speeches, which compared Trump’s criticisms of the judiciary to those of segregationists.
The point is: Trump’s nominees aren’t breaking any sacrosanct norms here. It is hard to sympathize with the concern that these nominees will, in the future, “have broad authority to sabotage [a Democratic] president’s agenda” when federal judges have blocked virtually every policy change the Trump administration has proposed. Some of the decisions are individually defensible, but the collective record is not.
But not to worry: Trump has brought the Ninth Circuit, which has ruled against him in many high-profile cases, much closer to ideological parity. As a recent Politico story describes it: “[The Ninth Circuit], a bastion of liberalism in the federal judiciary is slowly turning rightward, threatening Democratic court challenges on everything from abortion to who gets a green card.” The story notes that Trump’s 10 new appointments are already paying off for him:
A 9th Circuit panel of four Democratic appointees and seven Republican appointees in July allowed the administration’s overhaul of the Title X federal family planning program to take effect. The policy bars clinics that provide or refer patients for abortions from receiving program funds for reproductive health services like STD screenings and contraception and prompted Planned Parenthood to quit over the change. Another 9th Circuit panel this year ruled in favor of letting Trump’s Justice Department distribute grants to cities that use the money to crack down on illegal immigration.
Don’t get too excited though. The Ninth Circuit is still divided 16D-13R. The two oldest Democratic appointees are 74 and probably won’t retire under Trump. In fact, as I mentioned earlier, there are only two circuit vacancies in the whole country.
So what’s left to look forward to in 2020?
First, there are still about 80 vacancies on the district courts. And if Trump gets a second term, he will probably get to replace quite a few aging R-appointed circuit judges. But because lower court judges, like justices, tend to not retire under a president from the opposite party, another four years of Trump probably won’t change the ideological composition of the judiciary much more.
Even without a second term, however, Trump and McConnell have accomplished a lot. Several circuits have young conservative majorities, the Ninth Circuit is the most moderate it is has been since Jimmy Carter and, perhaps most important, Trump’s victory in 2016 prevented conservatives from losing the Supreme Court for a generation.
Everyone will certainly feel the impact of these judges for many years, but in that sense, if in no other, Trump is just like every other president.
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