President Donald Trump has notched his 200th confirmation to the federal courts faster than any predecessor in the last 40 years, cementing a conservative imprint that will last for decades and redefining the judicial selection process in ways likely to outlast his administration.
Not since President Jimmy Carter filled a slew of newly established judgeships in the late 1970s has a chief executive secured so many judicial confirmations so quickly. Trump campaigned on a promise to appoint conservatives, and he has delivered. His picks — who now account for nearly 1 in 4 federal judges — are pushing the courts rightward faster and farther than those of past Republican presidents.
The ideological consistency was only possible because of changes in the Senate that made the nomination process more driven by the White House. The Trump era seems unique compared with the recent past, but experts and advocates expect the new pattern to endure after he leaves office.
“The deterioration of these norms began before Trump, and now Republicans are just taking full advantage of it,” said Michael J. Gerhardt, a University of North Carolina law professor who has written about judicial selection and advised Senate Democrats. “The changes we’ve seen in the confirmation process are going to be enduring. … Once power of any kind gets unleashed, you almost never see it pulled back.”
The Next Four Years
Democrats appear to have a real chance of taking both the White House and the Senate in November’s elections. If they assume full control, a Democrat on the Judiciary Committee said he can’t imagine undoing the recent changes through unilateral disarmament.
“You don’t want a situation in which on a recurring basis, every time the Republicans are in charge, they let special interests stuff the courts full of partisan hacks who will rule for the special interests, and then we come in and populate the bench with regular judges,” Sen. Sheldon Whitehouse, D-R.I., told Law360.
“Adding to the partisan hackery does damage to an American institution,” he said. “On the other hand, what compromise could one reach to put an end to this? Is there a mutual stand-down that we could trust?”
Some on the Democratic Party’s left flank are already pushing presumptive presidential nominee Joe Biden to counteract recent conservative appointments with equally liberal judges.
“We must restore balance and bring diversity to our courts,” the advocacy group Demand Justice declared last year. “This means not nominating corporate lawyers and instead prioritizing labor lawyers, public interest lawyers and academics who have studied the law from the vantage point of workers and consumers.”
The group says the next Democratic president should not pick anyone who has made partner at a BigLaw firm or worked in-house at a big business. Sen. Elizabeth Warren, D-Mass., praised the proposal. It has endorsements from progressive groups including MoveOn and the American Federation of Teachers.
It’s not clear which outside groups would have influence in a Biden administration. Demand Justice is led by two Obama administration alums: Brian Fallon was a Justice Department spokesman, and Christopher Kang was the deputy White House counsel overseeing judicial selections. However, many Democrats see their demands as radical. The group did not respond to an interview request.
The left’s closest analog to the right’s Federalist Society, the de facto clearinghouse for Trump nominees, is the American Constitution Society.
The organization’s new president — former Sen. Russ Feingold, a Wisconsin Democrat who served on the Judiciary Committee — told Law360 this spring that the group is “ready to advise the president or senators … but in the spirit of being ready to advise if asked rather than being a gatekeeper, which I think is inappropriate.”
Biden leads in most national and battleground-state polls, but Trump has confounded expectations before. His imprint on the judiciary would only grow if he wins reelection.
“He’d have a much greater impact in a second term,” said John Malcolm of the conservative Heritage Foundation. For starters, Trump might get to name more Supreme Court justices, which could add decades to the Republican-appointee majority.
In the lower courts, Trump would likely replace more Democratic picks and flip the partisan balance on more circuits beyond the three switched so far — perhaps even the mainly liberal Ninth Circuit, where Trump’s 10 appointees have already had an effect.
“There are probably a fair number of Democrat-appointed judges who would like to retire but who are holding out,” Malcolm said. They might have waited four years, but eight years could be too long. It’s not just voluntary retirements, he noted: “The Grim Reaper comes to us all.”
A Cry for November
The increasingly partisan process of picking judges may figure prominently in this year’s political campaigns.
Republicans aren’t content to sit on their winnings. They deplore nationwide injunctions and Ninth Circuit rulings against the president’s policies. Even with a Republican-appointee majority and two Trump picks on the high court, the party has recently faced high-profile defeats there on immigration and LGBTQ protections.
Many on the right also remain angry over the bitter fight to confirm Justice Brett Kavanaugh, who was accused of past sexual misconduct.
“I believe in rallying cries,” Sen. Chuck Grassley, the Iowa Republican who oversaw the speedy processing of Trump’s picks as chairman of the Senate Judiciary Committee until 2018, said last month on a press call with the Article III project, which promotes Trump’s judicial picks.
Grassley asserted a parallel to the fight against dictators in World War II after Japan’s attack on Hawaii, saying, “We rallied the patriotism of the American people to beat Hitler and Tojo and Mussolini. ‘Remember Pearl Harbor’ was the cry.”
For November’s elections, Grassley said the equivalent would be, “Remember the Supreme Court! Remember Kavanaugh!”
The courts might also provide a motivational factor for the left. Democrats of all stripes still resent Senate Republicans’ refusal to consider President Barack Obama’s high court pick in 2016, D.C. Circuit Judge Merrick Garland. They are acutely aware that Justice Ruth Bader Ginsburg is 87 and has survived four bouts with cancer. And they saw Trump’s impact.
To the left, many of Trump’s picks look like hard-right ideologues rather than paragons of judicial restraint. They see judges who, before taking the bench, advanced conservative causes from opposing the Affordable Care Act and fighting labor unions to restricting abortion and backing voter ID laws.
“They have gone out of their way to choose judges who on every conceivable issue will turn the clock back,” said Nan Aron, president of the left-leaning Alliance for Justice. “We probably will not fully understand the extent of the harm to our rights and liberties until well after Donald Trump leaves office.”