Trump, GOP aim to complete reshaping of federal judiciary

Trump, GOP aim to complete reshaping of federal judiciary
© Greg Nash

President TrumpDonald TrumpDeputy AG: DOJ investigating fake Trump electors Former Boston Red Sox star David Ortiz elected to Baseball Hall of Fame Overnight Health Care — Senators unveil pandemic prep overhaul MORE and congressional Republicans are on the precipice of securing what they view as a key part of their legacy: a top-down reshaping of the federal judiciary. 

The death of Justice Ruth Bader GinsburgRuth Bader GinsburgSupreme Court just added affirmative action to its list of conservative unfinished business Biden says Roe v. Wade under attack like 'never before' Second gentleman Emhoff acts as public link to White House MORE, and the decision by GOP leaders to fill her seat, will allow the party to lock in a 6-3 conservative majority on the Supreme Court, likely for decades. 

In many ways the coming confirmation battle is a culmination of the past four years, where Trump, aided by a GOP-controlled Senate, has confirmed nominees at a dizzying pace. 

ADVERTISEMENT

“I think the number and the quality of people that the president’s nominated and we’ve confirmed is going to be an enduring legacy,” said Sen. John CornynJohn CornynSenators huddle on Russia sanctions as tensions escalate Momentum builds for new COVID-19 relief for businesses Senate panel advances bill blocking tech giants from favoring own products MORE (R-Texas), a member of GOP leadership and the Senate Judiciary Committee. 

Sen. John ThuneJohn Randolph ThuneThere is a bipartisan path forward on election and voter protections Juan Williams: It's Trump vs. McConnell for the GOP's future Biden's year two won't be about bipartisanship  MORE (S.D.), the No. 2 Republican senator, said that Trump’s ability to nominate three Supreme Court justices is “unique” and that he believed a 6-3 conservative court would be “good for the country.” 

“The courts and the judiciary have been a really high priority for the Republican majority in the Senate and the success that we’ve had in both filling lower court, appellate court and Supreme Court vacancies is something that I think will serve our country well in the long term,” Thune said. 

Trump announced on Saturday that he was naming Judge Amy Coney Barrett as his pick to succeed Ginsburg on the Supreme Court. 

GOP senators appear confident that — absent a significant eleventh-hour setback — Barrett will be confirmed to the Supreme Court before the Nov. 3 elections. 

Barrett’s ascendance will mark the biggest ideological shift between a new justice and their predecessor since Clarence ThomasClarence ThomasWill the justices end race-based affirmative action?  Supreme Court just added affirmative action to its list of conservative unfinished business Are the legal walls closing in on Donald Trump? MORE replaced Thurgood Marshall in 1991, according to a FiveThirtyEight analysis. A third Supreme Court confirmation for Trump would also make the Supreme Court the most conservative it has been since 1950, according to an analysis from The Washington Post’s Monkey Cage blog. 

Republican-aligned outside groups tipped their hand to the change Barrett would bring to the court’s center of gravity, where Chief Justice John Roberts served as a swing vote in recent years.

“With the appointment of a Justice Barrett as his third Supreme Court pick, President Trump will transform the 5-4 John Roberts court to the 6-3 Clarence Thomas court,” Mike Davis, the founder and president of the Article III Project, said in a statement about Barrett’s nomination. 

Conservatives view Barrett as an ideological successor to the late Justice Antonin Scalia. 

Barrett, if she’s confirmed, would be the third most conservative justice on the bench, behind Justices Samuel AlitoSamuel AlitoWill the justices end race-based affirmative action?  Supreme Court just added affirmative action to its list of conservative unfinished business It's up to America's state courts to rescue democracy MORE and Thomas, according to a study by Lee Epstein, a professor at Washington University in St. Louis; Andrew D. Martin, the chancellor of Washington University in St. Louis; and Kevin Quinn, a professor at the University of Michigan.

Republicans and their outside group allies have spent decades working to remake the courts, sparked by decisions made under the Warren court that they view as too progressive. 

Even though GOP presidents have selected 14 justices since 1970 compared to four by Democrats, conservatives have been publicly frustrated by the decisions made by some members of the court, such as former Justice David Souter, who were nominated by Republicans.

It’s a misstep they are hoping to avoid with Barrett. 

“I think it’s more about keeping promises. I mean, Republicans have been running for years on the pledge to put pro-Constitution justices on the bench,” said Sen. Josh HawleyJoshua (Josh) David HawleyMissouri Senate candidate says Congress members should go to jail if guilty of insider trading On The Money — Ban on stock trading for Congress gains steam The Hill's Morning Report - Presented by Facebook - Schumer tees up doomed election reform vote MORE (R-Mo.), a member of the Senate Judiciary Committee. 

Asked if he thought GOP majorities had previously failed to do that, Hawley added, “I don’t think our track record has been that great.” 

Trump has won confirmation of 218 judicial nominees, second only to President Carter. As of January, 28 percent of all appeals court judges were nominated by Trump and 21 percent of all judges, according to a report from the left-leaning Brookings Institution. That percent has only ticked upward in the interim.

Republicans, under Trump, have also flipped the balance of the 2nd, 3rd and 11th Circuit courts, while increasing the number of Republican-nominated judges on the 4th, 5th, 6th, 7th, 8th and 9th, according to data from the Article III Project, a Republican outside group supportive of the president’s picks. 

Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellHow Cruz Supreme Court case could lead to unlimited anonymous election spending Trump and Biden should stop denigrating US elections The Armageddon elections to come MORE (R-Ky.) views the courts as his top priority because of its long-term impact on the country. Republicans used procedural levers to keep some court seats vacant during the Obama administration, even while being willing to move circuit court nominations over the objections of home-state senators once in power. 

ADVERTISEMENT

Trump boasted to journalist Bob Woodward about his ability to get judicial nominees confirmed and talked up McConnell’s hyperfocus on the issue. 

“You know what Mitch’s biggest thing is in the whole world? His judges,” Trump told Woodward, according to audio obtained by The Washington Post and CNN. “He will absolutely ask me, ‘Please, let’s get the judge approved instead of 10 ambassadors.’ ”

The court fight comes as Republicans are at risk of losing both the Senate and the White House in November. 

That could position the Supreme Court, and the judicial system more broadly, as the GOP’s best shot of a foil to an otherwise unified Democratic government, particularly if Senate Democrats do away with protections provided by the 60-vote legislative filibuster. 

Thune rejected the idea that the Supreme Court should be viewed through such a political frame, saying they should call “balls and strikes.” 

“You don’t want the court writing rules. And I don’t think you look at them as a balancing out” of a Democratic government, Thune said. 

ADVERTISEMENT

But Democrats view the Supreme Court vacancy as the latest attempt by Republicans to shift the leaning of the federal judiciary to ensure a powerful ideological ally. 

“We know what their nominees stand for ... and they want to solidify their court majority,” said Sen. Dick DurbinDick DurbinBipartisan Senate group discusses changes to election law Democrats ask for information on specialized Border Patrol teams Democrats face scaled-back agenda after setbacks MORE (Ill.), the Democratic whip. 

Sen. Sheldon WhitehouseSheldon WhitehouseOvernight Energy & Environment — Starting from 'scratch' on climate, spending bill Oath Keeper charges renew attention on Trump orbit Democrats call on Biden administration to ease entry to US for at-risk Afghans MORE (D-R.I.), another member of the Senate Judiciary Committee, added that conservative groups are focused on judicial nominees “because if they control courts, they can make courts do things Congress would never do. Even Republicans in Congress would never do the things that these special interests can get courts to do.”