Trump stacking lower courts
President Donald Trump and Senate Majority Leader Mitch McConnell (R-Ky.) are together carving out a lasting judicial legacy, one with ominous implications for reproductive health and rights. Thirteen right-wing judicial nominees were hastily confirmed before the Senate’s August recess, and Trump nominated 12 more last week to be confirmed when Congress returns on Monday. Thanks to McConnell, the self-proclaimed “grim reaper,” the Senate has become a graveyard for House-passed legislation. Yet simultaneously, it has been quietly approving an alarming number of federal judgeships.
Trump and McConnell are not only making good on Trump’s campaign promise to stack the Supreme Court with anti-choice judges, they are also reshaping the lower district and appellate federal courts in hopes of overturning Roe v. Wade. As these are lifetime appointments and many of the appointees are quite young, Trump-appointed judges will influence decisions on reproductive rights for decades to come.
When Trump took office, he mockingly thanked President Obama for leaving him over 100 federal judgeship vacancies. He really should have thanked the “grim reaper” instead. It was McConnell who slammed the brakes on many of Obama’s judicial nominations, including stonewalling the appointment of Merrick Garland to the Supreme Court in 2016.
Once Trump was in the White House, McConnell took his foot off the brake and hit the accelerator, speeding confirmation of Trump’s judicial nominees, insisting there’s nothing “more important for America than confirming judges as rapidly” as possible. With McConnell’s support, Trump succeeded in filling more federal judgeships in his first year than any prior president, and the swift pace continues, with 146 of Trump’s overall nominations confirmed.
While the quantity of appointments is up, the quality is down. Research revealed that more of Trump’s judicial picks received “not qualified” ratings from the American Bar Association (ABA) compared to those nominated by his four most-recent predecessors in the first two years of their presidencies. To date, seven of Trump’s nominees have been deemed “not qualified,” meaning they did not meet the ABA committee’s standards with respect to one or more of its evaluation criteria: integrity, professional competence, or judicial temperament.
Allen Kobes, for example, was appointed to the 8th Circuit Court of Appeals in 2018 despite his notable lack of legal experience. He had previously served as lead counsel in just two trials that led to a verdict, had just one appellate oral argument under his belt, had no credentials in legal scholarship, and authored no law review articles. Kobes and other judges like him are pushed through not on merit, but because of their prior support for anti-abortion laws.
About 70 percent of Trump’s judicial appointees with lifetime appointments are young, white males who could very likely remain on the bench for 30 or more years. Overall, 78 percent of Trump’s nominees have been men and 87 percent have been white. Today, with one in four federal appeals court judges and one in seven district court judges appointed by Trump, the federal court system is showing itself increasingly hostile to reproductive health and rights.
One case in point is the full 9th Circuit Court of Appeals’ ruling that upheld a three-judge panel decision to remove the stay that blocked Trump’s “domestic gag rule” from going into effect. With a 7-4 vote, the court upheld the gag rule, which requires Title X-funded family planning providers, including Planned Parenthood, maintain “clear financial and physical separation” from centers that perform abortions, and forbids providers from discussing abortion with patients. The 9th Circuit has traditionally been a more progressive court, but with seven Trump-appointed judges on its bench, that could be changing.
This shift is no accident. The 9th Circuit ruling is the product of a deliberate strategy designed to overturn abortion rights. For decades, the anti-choice agenda has been to bring about the eventual overruling of Roe v. Wade, and in the meantime, chip away at the constitutional right to abortion. Step one: appoint anti-choice justices to the Supreme Court. Step two: pack the lower federal courts.
Appointing Supreme Court Justices Neil Gorsuch and Brett Kavanaugh may have accomplished step one. Time will tell if the Court is inclined to overturn Roe v. Wade. The 9th Circuit’s decision reflects the worrying progress of step two. The strategy has proven effective in the sense that it now poses a serious threat to the reproductive health and rights of millions of Americans for decades to come.
Bridget Kelly is a research associate with the Population Institute, a nonprofit based in Washington, D.C. that supports reproductive health and rights.