Trump’s mark on federal courts could last decades
President Trump’s impact on the federal judiciary will be felt for decades, regardless of whether he wins reelection in November.
Trump last week saw the Senate confirm his 200th judicial appointment, marking a significant milestone for the administration, the conservative legal movement and Senate Majority Leader Mitch McConnell (R-Ky.), who has worked furiously to remake the courts. Not since Jimmy Carter has a president appointed as many federal judges at this point in his first term.
Trump has appointed 53 judges to the influential courts of appeals, the last stop for cases before the Supreme Court, filling 30 percent of its seats with hand-picked conservatives.
Those judges have already made an impact with rulings and dissents on the Affordable Care Act, abortion and executive power, and will be shaping the law long after Trump leaves office. Many of Trump’s appointees have been young, and federal judges serve lifetime appointments.
The average age of Trump’s judges at the time they were appointed is 48 years old, compared with 57 for President Obama’s appointees, 51 for President George W. Bush’s and 50 for President Clinton’s, according to an analysis by the Brookings Institution from late February.
Trump’s appointees are also whiter and overwhelmingly male when compared to those tapped for the federal judiciary under his predecessor.
Stephen Burbank, a University of Pennsylvania law professor, said Trump has broken with a trend set by prior administrations of seeking to appoint a diverse group of judges to the federal bench.
Many of the appointees have ties to a conservative legal movement opposed to abortion, environmental and labor protections and restrictions on presidential power. Daniel Goldberg, the legal director of the progressive Alliance for Justice, described the appointees as “committed to advancing a partisan ideological agenda on the bench that Republicans cannot achieve in Congress.”
Trump’s allies view his mark on the courts as a signature accomplishment and one that can help the president galvanize his base of supporters ahead of the 2020 presidential election.
Trump often touts his judicial appointments in campaign speeches and official addresses, doing so at a recent rally in Tulsa, Okla., as he warned that Democrats would appoint justices to the Supreme Court who “utterly obliterate your Constitution.”
Carrie Severino, president of the conservative Judicial Crisis Network and former law clerk for Justice Clarence Thomas, argued Trump has selected nominees who are not afraid of handing down unpopular opinions in order to remain faithful to the Constitution.
“These judicial appointments are incredibly important and no less so now when there are so many voices looking for the end of constitutional structure,” Severino said.
At the same time, the 200-judge milestone comes as conservatives are grappling with a string of recent unexpected losses at the Supreme Court.
Earlier this month, Neil Gorsuch, Trump’s first nominee to the bench, sided with Chief Justice John Roberts and the liberal justices to guarantee LGBT individuals’ protection from workplace discrimination in a landmark ruling.
Roberts on Monday joined with the liberal justices in striking down a Louisiana abortion law that would have closed abortion clinics in the state. And he also sided with the liberal wing this month to block Trump’s plan to rescind the Deferred Action for Childhood Arrivals (DACA) program.
The decisions have incensed conservatives and even prompted some to question the enormously successful right-wing movement propelling Trump’s judicial confirmations project. Sen. Josh Hawley (R-Mo.) called the LGBT decision a major blow to social conservatives who had helped champion Gorsuch and other nominees.
“It represents the end of the conservative legal movement, or the conservative legal project, as we know it,” Hawley said in a Senate floor speech two weeks ago. “If we’ve been fighting for originalism and textualism and this is the result of that, then I have to say that we haven’t been fighting for very much.”
In response to the high-profile decisions, Trump is again campaigning on a promise to elevate more conservatives to the Supreme Court and other federal benches. Meanwhile, the president is trailing presumptive Democratic nominee Joe Biden nationally and in key swing states, according to recent surveys.
Trump said earlier this month that he planned to release an updated list of potential Supreme Court nominees following the DACA decision.
A source with knowledge of the judicial selection process said the administration is still in the early stages of revising the shortlist and would likely release it in September. The administration is expected to consider some judges that Trump has placed on the appellate bench as candidates for the list.
Trump first released his list of potential Supreme Court nominees in May 2016, shortly after being dubbed the presumptive GOP nominee. The list was created with the input of the Federalist Society, an influential network of conservative lawyers and judges that advocates an originalist approach to interpreting the law.
Despite the recent losses at the Supreme Court, many observers see an undeniable rightward shift in the judiciary in recent decades that Trump has helped accelerate.
“I suspect once we have enough decisions to analyze that you’re going to see the Trump appointees are hewing much more conservatively than the appointees of other Republican presidents,” said Russell Wheeler, a fellow at the Brookings Institution who’s been closely tracking Trump’s record on judicial nominations.
Wheeler believes that the Federalist Society’s influence in the Trump White House prompted the president to pick nominees with conservative bona fides.
Judge Neomi Rao, who was confirmed to her seat on the influential D.C. Circuit Court of Appeals in 2019, has consistently sided with the Trump administration in cases involving immigration, death penalty challenges and congressional investigations into the president. Last week, she wrote a decision ordering a lower court judge to dismiss criminal charges against Michael Flynn, the former national security adviser who pleaded guilty to lying to the FBI about his communications with a Russian diplomat.
Trump’s 10 appointees to the California-based 9th Circuit Court of Appeals have helped shift the balance of a court that had been known as one of the more liberal in the country. That paid off last year when two of those judges joined a 7-4 majority siding with the administration’s rule restricting federally funded health care providers from discussing abortion with patients.
And Gorsuch and Justice Brett Kavanaugh, Trump’s second Supreme Court pick, have already joined sweeping decisions restricting public sector unions and legal challenges to gerrymandering.
“Most judicial decisions are pretty cut and dry. There’s really no doubt how the decision should come out and that’s the reason you have a high number of unanimous decisions among court of appeals panels. But there are some cases in which the precedents aren’t clear, the statute is ambiguous and in that situation judges give more play to their own ideological policy choice,” Wheeler said.
“And when those cases arise, I think you’ve got the Trump judges — people who are pretty consistently going to come down on the ‘conservative’ side of it.”