Trump And The Judiciary

In just three years in office, Donald Trump has succeeded in taking huge steps in transforming the judiciary for decades to come.

In just three short years, President Trump and Senate Majority Leader Mitch McConnell have managed to complete what can already be called a significant transformation of the Federal Judiciary:

After three years in office, President Trump has remade the federal judiciary, ensuring a conservative tilt for decades and cementing his legacy no matter the outcome of November’s election.

Trump nominees make up 1 in 4 U.S. circuit court judges. Two of his picks sit on the Supreme Court. And this past week, as the House voted to impeach the president, the Republican-led Senate confirmed an additional 13 district court judges.

In total, Trump has installed 187 judges to the federal bench.

Trump’s mark on the judiciary is already having far-reaching effects on legislation and liberal priorities. Just last week, the 5th Circuit struck down a core provision of the Affordable Care Act. One of the two appellate judges who ruled against the landmark law was a Trump appointee.

The Supreme Court — where two of the nine justices are conservatives selected by Trump — could eventually hear that case.

The 13 circuit courts are the second most powerful in the nation, serving as a last stop for appeals on lower court rulings, unless the case is taken up by the Supreme Court. So far, Trump has appointed 50 judges to circuit court benches. Comparatively, by this point in President Obama’s first term, he had confirmed 25. At the end of his eight years, he had appointed 55 circuit judges.

Trump’s appointments have flipped three circuit courts to majority GOP-appointed judges, including the U.S. Court of Appeals for the 2nd Circuit in New York. The president has also selected younger conservatives for these lifetime appointments, ensuring his impact is felt for many years.

(…)

The three circuit courts that have flipped to Republican majorities this year have the potential to not only change policy but also benefit Trump professionally and politically.

The 2nd Circuit, with its new right-leaning majority, will decide whether to rehear a case challenging Trump’s ability to block critics on Twitter, as well as one regarding Trump’s businesses profiting while he’s in office. The 11th Circuit, which handles appeals from Georgia, Florida and Alabama, is set to take up several voting rights cases.

To put things in perspective, after just three years in office Trump has appointed and seen confirmed nearly as many Circuit Court Judges as President Obama did over eight years, only 12 fewer than President George W. Bush, and 16 fewer than President Clinton. He has also appointed more than the last one-term President, George H.W. Bush did in his four years in office. Meanwhile, he’s also managed to appoint and see confirmed as many Supreme Court Justices as every President before him since George H.W. Bush. On the District Court level, he’s appointed 135 Judges, which falls short of where his predecessors lie but puts him on track to surpass all of them if he’s re-elected and the GOP retains control of the Senate in 2020. (Source)

The main reason for this success, of course, has been the nearly single-minded focus of Senate Majority Leader Mitch McConnell on seeing that the Senate confirms as many Trump judicial nominees as possible before the 2020 elections. This has happened to the near exclusion of any other business before the Senate and has succeeded largely thanks to the fact that, back in November 2013, the Senate Democrats voted to end the filibuster for judicial appointments other than Supreme Court nominations. Republicans followed this up in 2017 by eliminating the filibuster for Supreme Court nominations. Additionally, McConnell has significantly cut the amount of debate time given to individual appointments from 30 hours to just 2 hours per nominee. McConnell further changed the process by ending the so-called “blue slip” process which allowed Senators to block nominees for seats in their home states at least as it applied to Circuit Court nominees (the blue slip is still available for District Court appointees.) These changes have made it next to impossible for Democrats to block or even significantly delay judicial confirmations and allowed McConnell to effectively turn the Senate into judicial confirmation machine. This is likely to continue into the new year even though there are, as of now, only a handful of Circuit Court seats waiting to be filled, a number that could increase as some Judges decide to retire or are required to assume Senior Judge status.

It’s hard to understate the importance of the numbers noted above. Even if Donald Trump only ends up being a one-term President, his judges are going to remain on the bench for decades to come. At the District Court level, this will impact a wide range of individual litigants in both civil and criminal cases. At the Circuit Court level, the impact is likely to be even more profound given the fact that it is at this level that most law is made. The Supreme Court only hears roughly 100 cases a year, in some years even less than that. This means that the law established by Circuit Court opinions in the thousands of cases that don’t get Supreme Court review will impact the country as much as the Supreme Court’s decisions will, perhaps even more so.

In part at least, this explains why so much of the Republican base, especially the Evangelical and so-called “religious right” continue to look the other way on the President’s moral and other failings. For them, as long as the President is delivering on judges, what he does or says in other areas doesn’t really matter. This has been a reality for the right for a long time, of course, but it has become even more apparent in the Trump Era. Because of this, the odds of anyone being able to drive a wedge between the President and the GOP base are very, very small. Perhaps the only thing that could change that is if the GOP loses the Senate even though Trump is re-elected, In that case, Trump would have to change his judicial appointment strategy significantly to get anything through a Democratic-controlled Senate.

Unlike Republicans, Democratic and Independent voters have not proven to be nearly as concerned about judicial nominees as Republicans notwithstanding their concern for issues such as abortion rights, LGBT rights, and other issues. Perhaps that will change in 2020 given the fact that whoever wins in 2020 could end up appointing not only additional Circuit Court and District Court seats, but also as many as three seats on the Supreme Court. As things stand, though, this is an area where Republicans are far more organized than Democrats, and it shows.

FILED UNDER: Donald Trump, Law and the Courts, Politicians, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. steve says:

    The same thing would have happened if any other Republican was POTUS. The credit goes to McConnell. Trump will claim credit and his followers will believe him, but we would have had the same judges if Rubio or Cruz (God forbid) were POTUS.

    Steve

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  2. @steve:

    This is true, of course, but it won’t matter to Republican voters in the fall.

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  3. CSK says:

    @steve: Add to which the fact that Trump quite literally has no idea who these judges are. He picks a name off a list handed to him, usually the name at the top so he doesn’t have to read the list.

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  4. gVOR08 says:

    Even Republicans used to sometimes nominate judges who were well qualified and widely respected. The real credit/blame goes to the Federalist Society for creating a large enough pool of ideologues waiting for a dupe to appoint them. And to the Koch Bros for setting up the Federalist Society.

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  5. Sleeping Dog says:

    Yup, elections have consequences and the Tiny’s judges are an example.

    Little frustrated me more about Clinton and Obama than there unwillingness to spend political capital on confirming judges. Then when they did, too often it was a 60 something who was rewarded for their years of public service. Those are the guys who’ve retired/died and Tiny is replacing.

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  6. Raoul says:

    To be keep things in perspective-it is my understanding that 2/3 of the district court judges appointed are replacing other republicans. In other words, judges themselves play politics with their seats.

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  7. Just Another Ex-Republican says:

    Distressing, but I’m not sure it’s as damaging as many fear (yet). To look at it another way, IF Trump is not re-elected, in 8 years the next President will have appointed about as many judges. So if we the voters do our job next November (admittedly a big if) Mitch and the evangelicals will have sold their souls for very little in the long term, and done so in a manner that will prevent them from being able to do a thing about liberal judges (unqualified or not) from being appointed.

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  8. Just nutha ignint cracker says:

    @steve: @CSK: Indeed! Imagine the effect had the GOP elected Cruz–who would likely have been able to fine tune these appointments toward whatever goals he might have had simply because of institutional history and the ability to pay attention to detail.

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  9. Just nutha ignint cracker says:

    @Sleeping Dog: I wonder how much “political capital” there is to spend. Including the mouse in your pocket, how many people vote out their Senator because the President chides them on not voting on judicial appointments?

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  10. Sleeping Dog says:

    @Just nutha ignint cracker:

    The political capital used, isn’t in getting the voters to defeat a particular senator, but in enticing the senators that are in place to move forward on your judicial nominees. Since this is a pet issue of mine, I remember articles criticizing both Clinton and Obama for not being aggressive enough. Granted neither had 8 years of Dems controlling the senate, but there were periods when the Dems did and the Presidents lagged.

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  11. CSK says:

    @Just nutha ignint cracker: Somewhat OT, but I never thought Cruz had a shot even at the Repub nomination. He made too many people’s skin crawl.

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  12. Just nutha ignint cracker says:

    @CSK: A party that can support Trump will support Cruz if he’ll provide what they want. That dam has burst IMLTHO.

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  13. CSK says:

    @Just nutha ignint cracker: Possibly, but Cult45 didn’t seem that enamored of Cruz at all. They would never have referred to Cruz as “our champion,” as they do Trump.

    Cult45 has finally gotten a taste of power–they thought they might get it with Palin, but she bailed on them–and they’re not going to concede it without a fight.

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  14. Kurtz says:

    @CSK:

    I was watching the news with a friend one day in ’16 and Cruz was talking to a group of people in Indiana. The dude he was talking directly to had cheap wraparound sunglasses and looked like he was all about Nascar, the NRA and Murica.

    I felt oddly bad for the most unlikable guy in America. Everytime Cruz tried to speak, sunglasses guy started saying, “Lyin’ Ted!” And the crowd behind him would start chanting it over and over. I had almost as much animosity toward the guy for making me feel a modicum of empathy for Cruz as I did for his Support of Trump.

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  15. CSK says:

    @Kurtz: Yes; that’s precisely what I mean. Cruz wasn’t trashy enough for these people, although they’d never admit it was Trump’s trashiness that appealed to them. Instead, they’d say Trump was a REAL American. You know–loud, vulgar, crude, inarticulate, and stupid.

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  16. Kurtz says:

    @CSK:

    It’s funny to me, because they gripe about academia and elitists from Harvard and Yale. Unless of course they are named Ben Shapiro or they are in FedSoc to get in the federal judge pipeline. Then they are fine.

    This is what happens when you disregard actual education as a public good, despite what Madison wrote about it.

    Tangentially, if you read some passages from On the Wealth of Nations to them, half of these Libertarians would swear it eas written by Marx.

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  17. CSK says:

    @Kurtz: Indeed. And their “man of the people,” their “blue collar billionaire” Donald J. Trump constantly boasts about his Ivy League creds. How truly pathetic that they’ve been suckered by a failed social climber who fumes with resentment over having been laughed off by elite Manhattan.

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  18. Gustopher says:

    Well, I figure that if the Trumpy judges say the FEMA re-education camps are unconstitutional, then we can just send them to the FEMA re-education camps… Problem solved, easy peasy.

    But, yeah, they’re going to be a problem until the revolution comes.

    I suppose that instead of a violent revolution where we stick the opposition into re-education camps we could also expand some of the courts next time we have all three branches. Less dramatic, but likely better for my property values.

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  19. Guarneri says:

    “In just three years in office, Donald Trump has succeeded in taking huge steps in transforming the judiciary for decades to come.”

    Ain’t it great!

    Elections have consequences. You guys wanted Crooked Hillary. The voters were smarter.

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  20. Kurtz says:

    @Guarneri:

    Lol

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  21. sam says:

    @Guarneri:

    The voters were smarter.

    The majority that voted against Trump certainly were.

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  22. gVOR08 says:

    @Guarneri: This is the thing I don’t understand. I can see, in fact I share, a contempt for our supposed elites. What I don’t see is how electing a New York billionaire who sees his voters as nothing but marks is supposed to help. These judges will throw you a few bones, safe, legal abortion may, in some states, become impossible and you may be able to refuse to bake cakes for out groups, but mostly these guys judges are pro elites. The Federalist Society is a creature of the Koch Bros, billionaire “libertarians” and occasionall fake populists. They’re going to make corporations and the .01% richer, at your expense.

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  23. Kathy says:

    @gVOR08:

    What the deplorables hear is the exalted judges appointed by Trump, the Boss of the Father, the Son, and the Holy Ghost, will keep them safe from Satan’s own Socialism.

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  24. steve says:

    Remember all of those businesses moving to China? That was done because a few wealthy elites realized they could make a lot of money by doing that. The US govt didnt make them move. Policies might have changed, at the request of those same wealthy elites, to make it easier to move, but ultimately they were moved to benefit a few rich people. Those judges Trump has put in place will now continue to support and approve whatever those same wealthy elites want to do. That is why Guarneri approves so much of Trump’s judges. Rubber stamps for the investor class at the expense of everyone else.

    Steve

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  25. Ray B says:

    The Presidents have broken the code that the future of their policies is written by the courts. Harry Reid went nuclear which is coming back to bite liberalism in the pants. Already the 9th circuit has had 9 Trump judges appointed.

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  26. john430 says:

    What was it that Obama said? Lemme think…oh yeah! He said, “Elections have consequences!”
    Imagine how many Trump will appoint in his second term! LOL!

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  27. john430 says:

    @steve: “…investor class”?

    Do you have any idea as to the millions of dollars invested in the stock market by union pension funds? Grow up and read up.

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