Trump, GOP aim to complete reshaping of federal judiciary

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

President TrumpDonald TrumpThe Memo: The Obamas unbound, on race Iran says onus is on US to rejoin nuclear deal on third anniversary of withdrawal Assaults on Roe v Wade increasing 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 GinsburgCourt watchers buzz about Breyer's possible retirement Five hot-button issues Biden didn't mention in his address to Congress Schumer waiting for recommendation on Supreme Court expansion 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. 


“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 CornynTim Scott sparks buzz in crowded field of White House hopefuls Cornyn is most prolific tweeter in Congress so far in 2021 Schumer 'exploring' passing immigration unilaterally if talks unravel MORE (R-Texas), a member of GOP leadership and the Senate Judiciary Committee. 

Sen. John ThuneJohn Randolph ThuneCheney fight stokes cries of GOP double standard for women Trump muddles Republican messaging on Afghanistan The Memo: Trump's critics face wrath of GOP base 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 ThomasSupreme Court gets it wrong again, denying justice to those in uniform Overnight Defense: Top general drops objection to major change in prosecuting military sexual assault | Supreme Court declines to take up case from former West Point cadet | Pentagon says 'small' attacks not affecting Afghanistan withdrawal Supreme Court declines to hear case over former West Point cadet's rape allegations 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 AlitoConservative justices split in ruling for immigrant fighting deportation Stand and deliver — President Biden's maiden address to Congress Supreme Court seems wary of California donor disclosure law 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 HawleyTrump plugs Hawley's new book over tech industry Cheney drama exposes GOP's Trump rifts Pollster Frank Luntz: 'I would bet on' Trump being 2024 GOP nominee 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 McConnellAssaults on Roe v Wade increasing Trump spokesman says defeating Cheney a top priority Biden to meet with GOP senators amid infrastructure push 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. 

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. 


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 DurbinAmerica's Jewish communities are under attack — Here are 3 things Congress can do Schumer 'exploring' passing immigration unilaterally if talks unravel On The Money: Incomes, consumer spending soared in March | Harris, senators work behind scenes on jobs package | Biden cancels some border wall construction MORE (Ill.), the Democratic whip. 

Sen. Sheldon WhitehouseSheldon WhitehouseJudge's decision on Barr memo puts spotlight on secretive DOJ office On The Money: Incomes, consumer spending soared in March | Harris, senators work behind scenes on jobs package | Biden cancels some border wall construction Harris, senators work behind scenes on jobs package 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.”