Trump’s imprint on federal courts could be his enduring legacy
“What Trump is doing will be detrimental to millions of people.”
Daniel Goldberg
“Leave no vacancy behind.”
It’s the motto that Senate Majority Leader Mitch McConnell, a Republican from Kentucky, said he intends to follow for President Trump’s fourth year in office as he continues his charge to confirm a record number of judges to the federal bench.
And it’s a motto that McConnell has seldom deviated from over the course of Mr. Trump’s first term, leading the president to make significant strides in reshaping the federal judiciary.
Since his inauguration in January 2017, Mr. Trump — with McConnell’s assistance — has appointed 193 judges to the federal bench, including 51 to the nation’s 13 courts of appeals, where there are a total of 179 authorized judgeships. Even as the nation grapples with the coronavirus pandemic, Mr. Trump has continued to charge ahead with judicial nominees, with the White House announcing last week the president would nominate Mississippi Court of Appeals Judge Cory Wilson to fill a vacancy on the 5th U.S. Circuit Court of Appeals, and U.S. District Judge Justin Walker to the U.S. Court of Appeals for the District of Columbia Circuit.
The president’s unrelenting focus on the federal judiciary, his supporters and detractors agree, will be one of Mr. Trump’s enduring legacies.
“What you’ve got is not just a force of numbers, not just people who are young and are going to be around for a long time, but people who are really driven philosophically and really care about those traditional legal principles that are so integral to the rule of law,” said Leonard Leo, an outside adviser to the White House on judicial selection.
Tens of thousands of cases wind their way through the federal court system annually, but fewer than 100 will be heard by the U.S. Supreme Court, meaning that for the vast majority of legal battles, the courts of appeals are the last stop. As a result, the judges Mr. Trump names to the federal bench have the opportunity to leave their stamp on the law for years to come.
Today, one in four judges on the courts of appeals were appointed by Mr. Trump and their average age is less than 50, the White House boasts, ensuring they will serve for at least a generation. They are also largely white and male, sparking criticism about a lack of diversity. Of the 51 judges confirmed to the courts of appeals, 11 are women.
“People from different cultures and races and nationalities and genders see life through different lenses, and to create a judiciary that is overwhelmingly white and male will one, deny the richness of a full discussion that can be brought to bear in deciding cases, but also undermine confidence that they will get a fair shake in the courts,” Nan Aron, president of Alliance for Justice, a progressive judicial organization, said.
Still, the president’s backers point to judges like Amul Thapar of the 6th Circuit, of South Asian descent, Patrick Bumatay of the 9th Circuit, who is openly gay, and Kenneth Lee of the 9th Circuit, who is Asian, as proof of the diversity among the ranks, as well as Amy Coney Barrett of the 7th Circuit, Allison Eid of the 10th Circuit and Britt Grant of the 11th Circuit to dispel the idea Mr. Trump favors white men.
Beyond the sheer volume of judicial picks that demonstrates Mr. Trump’s success in remaking the federal bench, the president has also flipped three courts of appeals — the 2nd, 3rd and 11th Circuits — from a majority of judges appointed by Democrats to a majority of judges appointed by Republicans.
Mr. Trump has also brought the 9th Circuit, long considered a liberal stronghold, closer to parity. When he first took office, there were seven judges tapped by Republican presidents and 18 by Democratic presidents. Today, after naming 10 judges to the San Francisco-based court and filling all its vacancies, Mr. Trump has narrowed that gap to 13 Republican-appointed judges and 16 Democrat-appointed judges.
“When you flip these circuits it makes it more likely that there are more Republican-appointed judges on these three-judge panels, and when these courts go en banc, which is all active federal court judges sitting together, they can overrule a panel and set circuit precedent,” said Mike Davis, former chief counsel for nominations to Senate Judiciary Committee Chairman Chuck Grassley.
Critics of Mr. Trump’s judicial picks describe the impact of his appointments in stark terms: American lives will be harmed because of who the president has named to the federal bench, and protections for workers, consumers and the environment will be gutted.
“It’ll be detrimental,” said Daniel Goldberg, legal director of the Alliance for Justice. “What Trump is doing will be detrimental to millions of people.”
Cited as evidence that Mr. Trump’s judges will dismantle progressive policies is a December ruling from a divided three-judge panel on the 5th U.S. Circuit Court of Appeals in a challenge to the Affordable Care Act.
Judge Kurt Engelhardt, appointed by Mr. Trump to the New Orleans-based court in 2018, joined Judge Jennifer Elrod in finding the Obama-era health care law’s individual mandate unconstitutional. The court, however, left unanswered the crucial question of whether the rest of the Obama-era health care law, which provided protections for people with pre-existing conditions, can stand without the mandate.
“Millions of people’s lives are literally at stake, lives and health are literally at stake with Trump judges,” Goldberg said.
The Supreme Court announced in March that it would take up the case, though it’s not likely to hear arguments until its next term, which begins in October.
Davis pushed back on the notion that the judges appointed by Mr. Trump will rule based on their policy preferences.
“A judge’s job is to find and apply the law as it’s written and understood by the public at the time of its enactment,” he said. “It’s not their job to pick winners and losers. It’s not their job to legislate from the bench. It’s not their job to set policy. A judge’s job is to follow the law. If the law commands a liberal result, there should be a liberal result. If the law commands a conservative result, there should be a conservative result.”
Groups that have been vocal in opposing Mr. Trump’s judicial appointments say their past writings, clients and rulings provide a window into how they will rule on specific issues when on the bench.