The Trumpification of the federal courts

Most Americans pay little attention to judicial nominations. As a result, for many, the most significant and lasting effects of the Donald Trump presidency have been happening largely under the radar.

In its closing days of its first session, the Senate confirmed 12 federal judges to lifetime seats on the district courts. Making good on his claim to “leave no vacancy behind,” Senate Majority Leader Mitch McConnell (R-Ky.) engineered the filling of virtually all of the open Circuit Court of Appeals seats and rapidly began engineering the confirmation of the lower court nominees.

Although both McConnell and President Trump regularly accuse the “do-nothing” Democrats of neglecting the nation’s business while pursuing impeachment and the removal of the president, Speaker Nancy Pelosi (D-Calif.) shepherded over 300 bills, not counting resolutions, through the House of Representatives. McConnell who has given himself the nickname, the “Grim Reaper,” has blocked almost all of them in the Senate. Instead, the Senate spent the year rapidly running judicial nominations through the chamber on an accelerated conveyer belt. According to my calculations, an amazing and unprecedented 45 percent of all Senate votes in 2019 related to judicial nominations. In fact, in this last year alone, 105 Trump-appointed judges (including 20 to the powerful circuit courts) were confirmed.

Over Trump’s three years in office, the Senate has now confirmed 50 circuit court judges, leaving the appeals court with 28 percent of its seats having been filled by Trump appointees so far. By comparison, President Obama, over his eight years in office, appointed only 55.

When public attention does turn to judicial nominations, it is usually focused exclusively on the Supreme Court. President Trump — again with a major assist from McConnell — has already had a major impact here. First, McConnell used his power in the Senate in a totally unprecedented fashion to block President Obama’s 2016 appointment of Merrick Garland to fill the seat vacated by the death of arch-conservative Antonin Scalia. McConnell refused to even permit hearings on the Obama nomination for almost a year until a Republican president took office. Trump appointed Neil Gorsuch and then, in 2018, when swing-vote Justice Anthony Kennedy retired, Trump filled the seat with the controversial Brett Kavanaugh. This strengthened the conservative majority in the court.

If reelected in 2020, Trump may well have the opportunity to name additional supreme court justices. Liberal icon Ruth Bader Ginsburg is 86, and Justice Stephen Breyer is 81. These Supreme Court nominations, past and future, will, of course, have a crucial impact. But, the importance of the next level of federal courts — the Circuit Courts — is quite often overlooked.

While the Supreme Court decides fewer than 80 cases on average each year, the 13 Circuit Courts issue the final decision on tens of thousands of cases which greatly impact people’s lives.

President Trump’s nominees — appointed for life — by most assessments, are extremely conservative. The qualifications of some are questionable. Nine of Trump’s judicial nominees received a majority rating of “Not Qualified” from the American Bar Association.

The chief counsel of the progressive judicial lobbying group, Demand Justice, Christopher Kang, has said, “Trump’s hijacking of our judiciary will be his most enduring legacy, and will continue to threaten everything progressives care about long after he leaves office.” 

The White House website makes the partisan intent crystal clear: “This work [appointing judges] is especially important due the left-wing’s push to throw away legal precedent and to abandon the Constitution in order to impose its own radical agenda.”

Trump himself has proudly declared, “The pace of appointments is only accelerating. It’s going very quickly. And then, you know, at some point, we’re going to have to slow it down because we’re not going to have any — any openings. You know that. But we’ll find them. We’ll find them. We’ll find them. Would you like to add a few judges? That wouldn’t be a bad idea. How about adding another hundred or so? We’ll be able to fill them.”

To ensure that the Trump-appointed judges serve for decades to come, the president has named younger nominees, including a 36-year-old who he placed on the 4^th Circuit Court of Appeals. The president has noted with pride that “the average age of my newly appointed circuit court judges is less than 50. They’re young, smart. That’s 10 years younger than President Obama’s nominees.” McConnell expresses it clearly, “My goal is to do everything we can for as long as we can to transform the federal judiciary, because everything else we do is transitory. The closest thing we will ever have an opportunity to do to have the longest impact on the country is confirming these great men and women and transforming the judiciary for as long into the future as we can.”

Not only are the Trump judges younger and more conservative, but they are less diverse than those appointed by recent presidents. President Obama set records for the most people of color, women, and openly gay and lesbian judges appointed by a president. Trump’s appointees in his first two years were 92 percent white (Obama’s were 64 percent). They were 76 percent male (Obama’s were 58 percent) and 70 percent white men. Not one of the nearly 50 Circuit Court nominees in the first two years was African American, not one was Hispanic.

Not only has the process been accelerated, but increasingly the minority in the Senate has been cut out of the process. This encourages a president to appoint more partisan and ideological judges. Until recently, most federal judges were confirmed by voice vote in the Senate: 98 percent of George H.W. Bush’s nominees to Circuit Court were confirmed by voice vote. For Presidents Reagan and Carter, the rate was only slightly lower (94 percent and 93 percent respectively). Even as recently as President Clinton, Circuit Court nominees were confirmed by voice vote 75 percent of the time.

No Trump nominee for Circuit Court has been confirmed by voice vote. In fact, the votes on Trump’s nominees reflects the intense polarization of the process: They have been confirmed, on average, by a mere 52-44 vote.

Majority leader McConnell has, at every turn, greased the process to run as many nominees as possible through the Senate as quickly as possible. But, the responsibility for initiating the avalanche falls to the Senate’s Democrats. Led by then-Majority Leader Harry Reid (D-Nev.), the Democratic majority in 2013, frustrated by Republican stonewalling on Circuit Court judges, used a controversial parliamentary ploy nicknamed the “nuclear option” to create a precedent for misinterpreting the Senate filibuster rule to allow debate on judges (below the Supreme Court) to be cut off by a simple majority vote. The McConnell-led Republican Senate, weaponizing procedure in the same way, used the same questionable method to eliminate filibusters on Supreme Court appointments in 2017 and to collapse post-cloture debate time on District Court nominees from 30 hours to two hours in 2019. In addition, McConnell has ceased honoring the “blue slip” norm on Circuit Court nominations which allowed senators from the nominee’s home state to slow and sometimes block consideration of a candidate. Conservative organizations are urging judges who plan to leave the bench in the next decade to do so now.

If a Democrat wins the White House in 2020 and the party takes back control of the Senate, retaliation is certain. The cycle of action and reaction further polarizing the process on a strict partisan basis will continue to politicize and weaken the federal courts. Only if voters begin to show more interest in judicial nominations and demand that the Senate return to adherence of its own rules of debate will the downward spiral ever end. 

Richard A. Arenberg is a visiting professor at Brown University and a former senior aide to Sens. Paul Tsongas (D-Mass.), Carl Levin (D-Mich.) and Majority Leader George Mitchell (D-Maine)  for 34 years. He is the author of the award-winning “Congressional Procedure: A Practical Guide to the Legislative Process in the U.S. Congress” and co-author of “Defending the Filibuster: The Soul of the Senate.” You can follow him on Twitter @richarenberg