Trump's Impact On Federal Courts: Judicial Nominees By The Numbers

13 hours ago
Originally published on August 5, 2019 12:26 pm

President Trump can be a master of distraction, but when it comes to judges, his administration has demonstrated steely discipline.

In the 2 1/2 years that Trump has been in office, his administration has appointed nearly 1 in 4 of the nation's federal appeals court judges and 1 in 7 of its district court judges.

The president recently called filling those vacancies for lifetime appointments a big part of his legacy. Given the relative youth of some of his judicial picks, experts say, those judges could remain on the bench for 30 or even 40 years.

Legal observers say Trump and his Republican allies in the Senate have placed an unmistakable stamp on the federal judiciary, not only in ideology but in identity.

"What stands out to me is that President Trump is deliberately nominating the least diverse class of judicial nominees that we have seen in modern history," said Kristine Lucius, executive vice president for policy at the Leadership Conference on Civil and Human Rights. "It is stunning to me that 2 1/2 years in, he has not nominated a single African American or a single Latinx to the appellate courts."

In all, around 70% of Trump's judicial appointees are white men. Dozens of those nominees have refused to answer whether they support the Supreme Court's holding in Brown v. Board of Education, the 1954 opinion that said racial segregation of public schools is unconstitutional.

Civil rights advocates say those nonanswers should be disqualifying. But with Republicans holding 53 seats in the Senate and on board with Trump's program to confirm as many judges as possible, these nonanswers usually aren't.

Conservative legal analyst Ed Whelan said there are good reasons why some judicial candidates balk at those questions.

"I think there's a game being played here, and the critics are part of that game," said Whelan, who leads the Ethics and Public Policy Center in Washington, D.C. "It's quite clear that what Democratic senators aim to do with that questioning is say, 'Well, if you can answer questions about Brown, why won't you answer questions about Roe?"

Whelan was alluding to Roe v. Wade, the decision that legalized abortion.

Consequences of courts transformed

Abortion-rights groups worry that Roe is now in peril from the new generation of judges with ties to the conservative Federalist Society, whose leader has consulted with the White House to select two Supreme Court justices and many other candidates for the lower courts.

With all his judicial appointees, however, Trump has not transformed the courts as much as he could have, legal analysts say. If more Democratic vacancies had been open, Trump's impact could have been even more dramatic.

Russell Wheeler, a visiting fellow at the Brookings Institution, said Trump has mostly replaced judges appointed by Republican presidents with his own candidates, adding to conservative majorities in courts based in the South and narrowing the margin in the 9th Circuit in San Francisco — a frequent target of the president's attacks.

All the same, Wheeler said, the new judges of the Trump era are generally more conservative than the older ones winding down their careers.

"When you replace a 70-year-old George W. Bush appointee who is slightly to the right of center with a 45-year-old movement conservative, obviously you're not trading apples for apples," Wheeler said.

A high-water mark?

Trump and Senate Majority Leader Mitch McConnell, R-Ky., may have reached a "high-water mark" on the federal appeals courts, Wheeler said.

They may have filled vacancies so quickly that there are unlikely to be many more openings on the circuit courts in the year ahead — unless judges appointed by Democrats decide to retire in large numbers.

That means attention is turning to the lower courts, which handle cases on civil rights, the environment, financial regulation and federal crimes.

On July 30 and 31, the Senate confirmed 13 district court judges before leaving the Capitol for its August recess. The Senate Judiciary Committee, run by Chairman Lindsey Graham, R-S.C., is poised to pick up the district court judge process again this fall.

Whelan, of the Ethics and Public Policy Center, said evangelicals and other conservatives are delighted with that pace — and with the White House for delivering on its promises to prioritize the judiciary.

In a few cases, Republican senators have brought down the president's own nominees, getting the candidates to withdraw sometimes because they're not conservative enough.

For progressive activists, that only highlights the need for Democrats to take judicial appointments more seriously. The subject has so far not been a focus in any of the Democratic presidential debates, in which 2020 hopefuls are making the case for why they should be the Democratic Party's nominee to take on Trump.

But as Brian Fallon of the group Demand Justice pointed out, the Democratic presidential candidates are campaigning on ambitious ideas — climate change policies, health care and financial regulation.

Those things, he said, will be disputed in court and will need to survive judicial review in front of judges — many of whom were appointed by Trump.

Fallon has this to say to Democrats vying for the White House: "They actually owe it to the voters to explain very clearly what they're going to do to take back the courts and who they'll nominate in order to do that."

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