Trump Is Rapidly Reshaping the Judiciary. Here’s How.
By
CHARLIE SAVAGENOV. 11, 2017
Amul R. Thapar was confirmed to the Sixth Circuit Court of Appeals in May, a month after his Senate Judiciary Committee confirmation hearing. Gabriella Demczuk for The New York Times
WASHINGTON — In the weeks before Donald J. Trump took office, lawyers joining his administration gathered at a law firm near the Capitol, where
Donald F. McGahn II, the soon-to-be White House counsel, filled a white board with a secret battle plan to fill the federal appeals courts with young and deeply conservative judges.
Mr. McGahn, instructed by Mr. Trump to maximize the opportunity to reshape the judiciary, mapped out potential nominees and a strategy, according to two people familiar with the effort: Start by filling vacancies on appeals courts with multiple openings and where Democratic senators up for re-election next year in states won by Mr. Trump — like Indiana, Michigan and Pennsylvania — could be pressured not to block his nominees. And to speed them through confirmation, avoid clogging the Senate with too many nominees for the district courts, where legal philosophy is less crucial.
Nearly a year later, that plan is coming to fruition. Mr. Trump has already appointed eight appellate judges, the most this early in a presidency since Richard M. Nixon, and on Thursday, the Senate Judiciary Committee voted along party lines to send a ninth appellate nominee — Mr. Trump’s deputy White House counsel, Gregory Katsas — to the floor.
Republicans are systematically filling appellate seats they held open during President Barack Obama’s final two years in office with a particularly conservative group of judges with life tenure. Democrats — who in late 2013 abolished the ability of 41 lawmakers to block such nominees with a filibuster, then quickly lost control of the Senate — have scant power to stop them.
Most have strong academic credentials and clerked for well-known conservative judges, like
Justice Antonin Scalia. Confirmation votes for five of the eight new judges fell short of the former 60-vote threshold to clear filibusters, including John K. Bush, a chapter president of the Federalist Society, the conservative legal network, who wrote politically charged blog posts, such as comparing abortion to slavery; and Stephanos Bibas, a University of Pennsylvania law professor who once
proposed using electric shocks to punish people convicted of certain crimes, although he later disavowed the idea. Of Mr. Trump’s 18 appellate nominees so far, 14 are men and 16 are white.
While the two parties have been engaged in a tit-for-tat escalation of hardball politics over judicial nominations since the Reagan years, the Trump administration is completing a fundamental transformation of the enterprise. And the consequences may go beyond his chance to leave an outsize stamp on the judiciary. When Democrats regain power, if they follow the same playbook and systematically appoint outspoken liberal judges, the appeals courts will end up as ideologically split as Congress is today.
Composition of the federal appeals courts, by appointing president.
19851990199520002005201020150%25%50%25%0%W. BushBushReaganCarterClintonObamaVacantseatsTrump
“It’s such a depressing idea, that we don’t get appointments unless we have unified government, and that the appointments we ultimately get are as polarized as the rest of the country,” said Lee Epstein, a law professor and political scientist at Washington University in St. Louis. “What does that mean for the legitimacy of the courts in the United States? It’s not a pretty world.”
For now, conservatives are reveling in their success. During the campaign, Mr. Trump shored up the support of skeptical right-wing voters by promising to select Supreme Court justices from a list Mr. McGahn put together with help from the Federalist Society and the conservative Heritage Foundation.
Exit polls showed that court-focused voters helped deliver the president’s narrow victory. Now, he is rewarding them.
“We will set records in terms of the number of judges,” Mr. Trump said at the White House recently, adding that many more nominees were in the pipeline. Standing beside the Senate majority leader, Mitch McConnell of Kentucky, he continued, “There has never been anything like what we’ve been able to do together with judges.”
Donald F. McGahn II, the White House counsel, helped President Trump map out a strategy of judicial appointments. Al Drago/The New York Times
Appellate judges draw less attention than Supreme Court justices like Neil M. Gorsuch, whom Mr. Trump
installed in the seat that Justice Scalia’s death left vacant and that Republicans, led by Mr. McConnell,
refused to let Mr. Obama fill. But the 12 regional appeals courts wield profound influence over Americans’ lives, getting the final word on about 60,000 cases a year that are not among the roughly 80 the Supreme Court hears.
Nan Aron, of the liberal Alliance for Justice, said that her group considered many of Mr. Trump’s nominees to be “extremists” — hostile to the rights of women, minority groups and workers, and unduly favorable to the wealthy. But conservatives, who have rallied around Mr. Trump’s nominees as a rare bright spot of unity for the fractious Republican Party, see them as legal rock stars who will interpret the Constitution according to its text and original meaning.
And they see tremendous opportunity in the fact that Mr. Trump is the first Republican president whose nominees can be confirmed by simple-majority votes, especially since he is likely to fill an unusually large number of vacancies. Mr. Trump started with 21 open appellate seats because after Republicans gained control of the Senate in 2015, they
essentially shut down the confirmation process. Six additional appellate judgeships have opened since his inauguration, and nearly half of the 150 active appeals court judges are eligible to take senior status — semiretirement that permits a successor’s appointment — or will soon reach that age, according to Russell Wheeler, a Brookings Institution scholar.
Almost Half of Appeals Judges Are Eligible for Senior Status
State of the federal appeals courts at the start of each president’s first term.
President Median Judge Age Vacant Seats Senior-Eligible Seats
Richard M. Nixon 59 10% 10%
Gerald Ford 59 3% 10%
Jimmy Carter 60 6% 14%
Ronald Reagan 60 4% 15%
George H.W. Bush 59 12% 16%
Bill Clinton 59 13% 13%
George W. Bush 60 16% 14%
Barack Obama 62 9% 27%
Donald J. Trump 66 11% 44%
As a result, Mr. Trump is poised to bring the conservative legal movement, which took shape in the 1980s in reaction to decades of liberal rulings on issues like the rights of criminal suspects and of women who want abortions, to a new peak of influence over American law and society.
“What makes this a unique opportunity in modern history is the sheer number of vacancies, the number of potential vacancies because of the aging bench, and the existence of a president who really cares about this issue in his gut,” said Leonard A. Leo, an informal adviser to Mr. Trump on courts who is the executive vice president of the Federalist Society.
Liberals have accused Mr. Trump of outsourcing his nominations process to the Federalist Society. But two administration officials argued that this claim misunderstands how the conservative legal movement has matured as the generation of Republican lawyers shaped by reading the originalist dissents of Justice Scalia and by
the bitter 1987 fight over Judge Robert H. Bork’s
failed Supreme Court nominationhas come of age. Mr. McGahn and nearly all the lawyers working for him at the White House are longtime society participants, so relationships built on the network of like-minded conservatives saturate discussions of potential nominees from the inside, they said.
Mr. Trump has also had help from the Senate Judiciary Committee chairman, Charles E. Grassley, Republican of Iowa, in lowering impediments and keeping the confirmation assembly line moving.
For example, confirmation hearings have usually featured just one appellate hopeful at a time (along with several district judge nominees). But Mr. Grassley has scheduled three hearings this year with two appellate nominees — as many as took place during all eight years of the Obama administration, according to congressional aides.
The independent guardrail role of the American Bar Association, which has
vettedpotential judges since the Eisenhower administration — conducting confidential interviews with people who worked with them and rating their experience, integrity and temperament — is also weakening. Picks by presidents of both parties have sometimes
run into trouble, but Republicans have accused the group of bias against conservatives.
Traditionally, the group’s volunteers vet potential judges before the White House decides whether to send their names to the Senate, but Mr. Trump — like President George W. Bush —
exiled it from that role, leaving it scrambling to evaluate nominees afterward. Already this year, Mr. Grassley has held hearings for four district judge nominees before the group finished its work — which happened with only seven during the eight Bush years.
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