“What does it say that Trump gets to pick yet another judge to sit on the court overseeing many of the investigations into his unlawful behavior? It’s not often a defendant gets to pick the judges that oversee his case.”Daniel Goldberg
A forthcoming retirement on a highly powerful Washington, D.C. court represents another opportunity for President Donald Trump to remake the federal court system in his own image—or at least a close approximation of Leonard Leo’s.
Late Thursday, U.S. Court of Appeals for the D.C. Circuit Judge Thomas Griffith announced his departure after serving a relatively short-lived stint of 15 years on the bench. He was appointed to the (not-quite) lifetime position by George W. Bush in 2004 and previously worked as the U.S. Senate’s chief legal counsel.
The universe of possibilities for Trump is essentially the president’s juridical oyster—but the likelihood of his choice being anything other than a conservative movement-approved stalwart stands at roughly the same as a whelk’s chance of surviving a supernova.
Judges Gregory Katsas and Neomi Rao were previously installed by Trump on the D.C. Circuit Court of Appeals. Whoever the 45th president selects to replace Griffith will result in a rare hat trick of judges appointed to the same court—a stunning exercise of power over a particular portion of the judicial system.
As for the potential of a blistering upper chamber battle over the appointment? That’s fairly unlikely. Senate Majority Leader Mitch McConnell (R-Ky.) has managed to move almost every single one of Trump’s nominees through the GOP-controlled Senate—typically with several Democrat defections—with very little muss or fuss. And while the D.C. Court is widely considered one of the most important courts in the country after the Supreme Court, the Democratic Party’s fight on this front has long left court-watchers and progressive activists seriously wanting.
“These openings on the D.C. Circuit are the second-most important judicial appointments in the country, after only the Supreme Court (of course),” CNN legal analyst Elie Honig noted on Twitter. “Trump nominee will be Federalist Society-approved, probably young, and McConnell will ensure confirmation. Elections have consequences.”
Honig’s sentiment was was echoed by national security attorney Bradley P. Moss.
“This newest vacancy and the likelihood the president will be able to fill it prior to November one more reminder that elections have consequences,” Moss told Law&Crime via email. “These first four years have allowed the president to install a generation of new judges.”
It’s not as if Griffith will be particularly missed by the president’s critics—just last week he authored a widely-panned decision that many read as essentially foreclosing against judicial oversight of the executive branch.
But it’s the notion that Trump will likely replace the departing judge with someone just as conservative—and perhaps expressly more loyal—that has liberal and progressive judicial advocates and activists dismayed.
Marge Baker is executive vice president for policy and program at People for the American Way, a progressive advocacy group founded in in 1981 which describes itself as dedicated to fighting “right-wing extremism” and which aims to “build a democratic society that implements the ideals of freedom, equality, opportunity and justice for all.”
In an email to Law&Crime, Baker stressed the stakes involved with Trump’s likely third appointment to the crucial D.C. court.
“We’re deeply concerned about the possibility that Donald Trump will get a third appointment to the D.C. Circuit, which is one of the country’s most influential courts,” Baker said. “The court has a huge role in determining the legality of actions by the administration and the federal government and this president has already appointed two people, Greg Katsas and Neomi Rao, who are Trump loyalists and advocates for expansive presidential power. Having another judge on this court who is willing to give Trump carte blanche to do whatever he wants to do would be another huge blow to the rule of law and will encourage Trump’s further abuses of power.”
Progressive judicial advocacy group Alliance for Justice’s Legal Director Daniel Goldberg cut to the quick—predicting a selection that bodes ill for the rule of law.
“What does it say that Trump gets to pick yet another judge to sit on the court overseeing many of the investigations into his unlawful behavior? It’s not often a defendant gets to pick the judges that oversee his case,” Goldberg said. “We already know from Gregory Katsas and Neomi Rao that Trump picks loyalists who follow through on protecting him.”
“Given their recent vote to acquit Trump on impeachment charges, if Senate Republicans confirm yet another Trump loyalist, they will be condoning a lawless president,” he added.