Trump presidency’s most lasting impact? A transformed judiciary.
In early November, during the impeachment inquiry against him, President Donald Trump threw a celebration in the East Room of the White House.
The guests: a group of Senate Republicans and Leonard Leo, head of The Federalist Society. The occasion: President Trump’s appointing 44 federal appeals court judges – about one-quarter of the entire appeals court bench.
The Trump administration and Senate Republicans – along with The Federalist Society, the conservative legal group tasked by the administration with identifying and vetting reliably conservative nominees – have over the past three years developed a pipeline of relentless efficiency for lifetime judicial appointments.
The volume of confirmed judges is arguably the greatest achievement of Mr. Trump’s first term, and undoubtedly will be his longest lasting. The two Supreme Court justices and 133 district court judges, along with the now 50 appeals court judges he has appointed to date all have lifetime positions.
Or, as Sen. Ben Sasse of Nebraska put it in a press release: “On the [Senate] Judiciary Committee we chew bubblegum and confirm great judges – and we’re all out of bubblegum.”
In particular, Republicans have “focused like a laser” on filling the 13 circuit courts of appeal – the courts that have the final word on all but the roughly 75 cases the Supreme Court decides each year – according to Carl Tobias, a professor at the University of Richmond School of Law who tracks federal judicial appointments.
“That’s where the policy is made,” he adds. “The people appointed have been young, extremely conservative ideologically, and mostly recommended by Leonard Leo.”
In addition to being young – half of his appellate appointments were under 50, with six under 40 – and deeply conservative, Mr. Trump’s chosen judges are also overwhelmingly white and male. About 1 in 4 of his appointments have been women, and just over 1 in 10 have been people of color.
A number of appointees have also been criticized for being inexperienced, particularly those nominees rated “not qualified” by the American Bar Association (ABA).
Conservatives have long been critical of the ABA – a private legal organization that has issued advisory ratings of federal judicial nominees since 1956 – claiming that its ratings are biased against Republican nominees. Some academic analyses have backed up this claim, and President George W. Bush refused to allow the ABA early review of his nominees throughout his eight-year presidency. His successor, Barack Obama, brought the ABA back into the fold. He never nominated a candidate rated “not qualified” by the organization.
Four of President Trump’s nominees have been rated unanimously not qualified by the ABA’s Standing Committee on the Federal Judiciary, with at least a portion of the committee rating 24 other nominees not qualified. (Almost half of his nominees have been rated “well qualified.”)
In rating a nominee, the ABA examines their personal background and legal writings, as well as interviewing the nominee and, confidentially, some of their colleagues. A recurring feature of the “not qualified” ratings for Trump nominees has been a lack of experience.
Sarah Pitlyk, a former clerk for Justice Brett Kavanaugh confirmed to a Missouri district court this month, received a unanimous “not qualified” rating because she has never tried a civil or criminal case, examined a witness, taken a deposition, picked a jury, or argued a motion in a state or federal trial court. (The committee did not comment on Judge Pitlyk’s career advocating for anti-abortion clients and policies.)
Justin Walker, a law professor in his 30s, had similarly sparse courtroom experience – though he’d clerked for both Justice Kavanaugh and former Justice Anthony Kennedy – and a “substantial majority” of the ABA committee rated him unqualified. He was confirmed to a district court judgeship in October.
The ABA’s preference for 12 years’ experience isn’t what most bothers Josh Blackman, a professor at South Texas College of Law Houston. What concerns him is how the committee evaluates the temperament and reputation of some nominees – notably Lawrence VanDyke, a former state solicitor general, confirmed to the Ninth Circuit last week, who the ABA reported to be arrogant, lazy, an ideologue, and unqualified.
“When [ratings] move to subjective facts like temperament I have much stronger doubts, because often those are code words for, ‘We don’t like their politics,’” says Professor Blackman.
Senate Democrats haven’t been using code words to hide their dislike of the politics of Mr. Trump’s judicial picks. (“I’m concerned about her ability to fairly and impartially apply these important [abortion] precedents, given her strong personal views,” Sen. Dianne Feinstein of California said during the confirmation hearing of Neomi Rao, who was nominated to replace Justice Kavanaugh on the D.C. Circuit Court.) But Senate Republicans have also, on occasion, questioned the ideology of nominees – accusing them of being insufficiently conservative.
Sen. Josh Hawley of Missouri also voiced “deep concerns” over the judicial philosophy, and views on abortion, of Judge Rao – concerned that she might not be anti-abortion enough. The Senate eventually confirmed her, but Judge Halil “Sul” Ozerden, a nominee for the Fifth Circuit, has not been so fortunate. His nomination has been stalled by opposition from Senator Hawley and Republican Sen. Ted Cruz of Texas, in part due to his 2012 dismissal of a challenge to the Affordable Care Act’s contraceptive mandate. Judge Ozerden said he dismissed the case on procedural grounds.
Republican senators “are stress-testing these judges’ ideology,” says Jill Dash, vice president of strategic engagement at the progressive American Constitution Society. “It’s not enough to be conservative. You have to be extremely conservative.”
It’s still too early to know if Mr. Trump’s selections are having a significant effect on the law, according to Professor Tobias, but that could be arriving soon.
The D.C. Circuit ruled last month that the House of Representatives can subpoena Mr. Trump’s tax records. Judges Reo and Greg Katsas, both Trump appointees, dissented from a decision denying a rehearing “en banc” (by the full court), calling the subpoena “unprecedented” and a “threat to presidential autonomy and independence.” The Supreme Court will review the case in March, and those dissents could form the legal basis for a majority of justices to rule in Mr. Trump’s favor.
But abortion is the issue where judges selected by Mr. Trump – who said as a candidate he would appoint “pro-life judges” – could make their mark soonest.
Four Trump appointees to the Fifth Circuit joined a 9-6 majority denying a rehearing en banc of a decision allowing a restrictive Louisiana abortion law, bearing striking similarity to a Texas law the Supreme Court struck down in 2016, to go into effect. The high court will review that ruling in March. Last week the justices also declined to hear a challenge to an opinion authored by Judge John K. Bush, a Trump appointee to the Sixth Circuit, upholding a Kentucky law requiring doctors who perform abortions to perform an invasive transvaginal ultrasound – probing patients, displaying pictures, and describing the images to women.
Opinions like that are why Democrats should make judicial appointments more of a campaign issue in the 2020 election cycle, says Ms. Dash. Republicans certainly have.
“Nobody’s done more to change the court system in the history of our country than Donald Trump,” Senate Majority Leader Mitch McConnell told supporters at a Trump rally in November. “And Mr. President, we’re gonna keep on doing it. My motto is, ‘Leave no vacancy behind.’”
And as much as anything else, the likelihood of an election cycle focused on judicial appointments is what concerns Professor Tobias.
“It’s corrosive for the federal judiciary, it politicizes the courts,” he says.
“Trump’s view is the courts are like anything else. They can be manipulated and trained and bent to his will,” he adds. “That’s not what the founders anticipated. It’s very troubling.”
Editors note: This story has been updated to reflect the latest federal judicial confirmations.