What could be U.S. President Donald Trump’s most transformative feat in his first year is happening quickly and uncharacteristically quietly, a historic reshaping of an entire branch of the U.S. government: The federal judiciary.
Every president expects to leave an imprint on the federal bench. Few have had the unusual opportunity Trump is now enjoying — and taking maximum advantage of — to speed through a record number of lifetime judicial appointments.
“The judge story is an untold story,” Trump told reporters in the Rose Garden in October. “Nobody wants to talk about it.”
No wonder he wants credit. For the White House, it’s “an absolute triumph,” says Sheldon Goldman, an authority on judicial selections at the University Of Massachusetts at Amherst.
Neil M. Gorsuch, standing at the far right, was nominated to the U.S. Supreme Court by President Donald Trump. (Franz Jantzen/Supreme Court Curator’s Office)
“It was one of the highest priorities of this administration, and they’ve taken the ball and run with it. It’s been stunning in his first year.”
The Senate has already confirmed 23 of Trump’s nominees, including the high-profile confirmation of Neil Gorsuch to the U.S. Supreme Court. That eclipses his predecessor Barack Obama’s 14 confirmations during the first 365 days of his presidency.
There are nearly 900 lifetime federal judgeships, made up of about 650 judges in district courts, 179 appellate court judgeships and the nine members of the Supreme Court.
To the president’s supporters, this judicial reshaping should be regarded as the “crown jewel” of the Trump White House so far, says Goldman, the author of Picking Federal Judges: Lower Court Selection from Roosevelt through Reagan.
Five major factors, including breaks from tradition, have come together to help Trump install people he pledged during the campaign would be conservative judges.
1. A wave of retirements
The U.S. judiciary is undergoing a period of generational change as federal justices hang up their robes. (iStock)
More judges are hanging up their robes. As of Jan. 18, there were 145 federal judicial vacancies, according to the Administrative Office of the U.S. Courts tally.
“We’re talking vacancies in maybe 20 per cent of the lower court judiciary. That’s impressive,” Goldman says.
Some of it is natural turnover. Goldman also suspects “strategic retirement” could be causing the spike. The phenomenon refers to federal judges who only leave their lifetime appointments once a like-minded president comes into power.
“Republican judges decide to wait until there’s a Republican in the White House before they retire,” Goldman says, thereby increasing the chances their seats will be filled by like-minded replacements.
2. Republican dominance in Congress
Senate majority leader Mitch McConnell, centre, speaks to reporters in Washington. Republicans hold a 51-seat majority in the 100-seat Senate. (J. Scott Applewhite/Associated Press)
Republicans control the Senate, virtually assuring any Trump nominees can be confirmed.
Obama’s situation was different. The Republican Senate blocked his picks from elevation using procedural moves. This means unfilled judgeships from the Obama years are up for grabs under Trump’s administration.
In 2013, Democrats were frustrated by Senate Republicans who engaged in “an unprecedented amount of filibustering,” says Alicia Bannon, senior counsel for the Brennan Center for Justice in New York.
3. Bye-bye filibuster
Republicans eased the confirmation threshold to elevate Gorsuch to the highest court. (J. Scott Applewhite)/Associated Press)
Frustrated by the obstruction in 2013, Democrats triggered the “nuclear option,” a change in procedural rules that eliminated the filibuster for lower-court nominees by easing the threshold to confirm district or circuit court judgeships. A simple majority of Democratic senators could push through controversial nominees rather than the previously required two-thirds supermajority.
Now their political rivals have Senate control. With their slim 51-49 seat advantage, Republicans have enough to confirm potential controversial nominees without any Democratic votes. In 2017, Republicans triggered the nuclear option again — this time for Supreme Court nominations — in order to elevate Gorsuch to the highest court.
“One thing that having a supermajority did was it made it harder to get more extreme nominees through,” Bannon says.
“Now, you don’t have the minority check.”
4. Undermining the American Bar Association
Matthew Petersen withdrew as a judicial nominee after he was unable to answer basic legal questions in a Senate hearing. (Alex Wong/Getty Images)
The Trump administration also did away with the custom of sending nominees’ names to the American Bar Association for review. The ABA, criticized by Republicans as too liberal-leaning, historically collaborated privately with the White House before a nominee was publicly named and rated.
Under Trump, the ABA’s pre-announcement privileges have been pulled. Bannon cautions that post-nomination vetting “is potentially more embarrassing for people found not qualified.”
She noted that White House nominee Matthew Petersen withdrew his nomination for a seat on the U.S. District Court for D.C. after failing to answer basic legal questions. Petersen’s exchange with a Republican senator in the public hearing went viral. Two other judicial nominees also withdrew their names.
5. Bucking ‘blue slips’
Home-state senators must sign blue slips of paper approving a federal court nominee. (Brennan Center for Justice)
The “blue slip” process allowed nominees for judgeships to be blocked by their two home-state senators. The tradition holds that both senators must sign blue slips of paper approving a nominee from their state before that nominee can advance. Refusal to submit a positive blue slip can halt a nomination.
Although senators from Minnesota and Louisiana withheld blue slips for Trump appeals court nominees from their states, Republican Sen. Chuck Grassley, chair of the Senate judiciary committee, announced his intention to hold hearings anyway. Critics have accused him of not respecting the policy.
How much lower courts mattered this year
The U.S. Supreme Court decides between 70 and 80 cases per year. The rest go to the federal lower courts.
If there was any doubt about how much impact the lower federal courts can have, consider how in his first year in office, Trump was foiled by judges again and again.
It happened on his initial travel ban on Muslim-majority countries, on his prohibition of transgender people from serving in the military, on efforts to defund sanctuary cities and recently on DACA (Deferred Action Against Childhood Arrivals), the program that gave young immigrants the ability to remain in the U.S. after having been brought illegally to the country by their parents.
A U.S. District Court judge in D.C. has ruled in favour of Trump for his choice to head the Consumer Financial Protection Bureau.
Male, white nominees
Not since the presidency of Richard Nixon have so many judges been confirmed at such a fast clip, according to The Associated Press.
And not since Ronald Reagan have they been so male and white, with an Associated Press analysis showing that about 75 per cent Trump’s picks belong to this demographic, despite previous administrations embracing more diversity. (Obama’s confirmed judicial nominees were 31 per cent white men; Bush’s were 67 per cent white men.)
The lack of diversity among Trump’s judicial picks is “troubling,” Bannon says, as diverse perspectives on the bench benefit judicial decisionmaking.
“When courts don’t reflect the diversity of the communities they serve, it can undermine public confidence in our judiciary.”
Downstream political ramifications
Appellate judges in line for possible elevation to the Supreme Court by presidents have been shown to make “hyper-ideological” rulings, possibly as a way to “lobby” for career advancement, says Ryan Owens, who researches the judiciary at the University of Wisconsin.
“You’ve got to be clear in what you believe and signal to the president and his handlers you can be trusted.”
In his 2015 study, Courting the President, published in the American Journal of Political Science, Owens found that judges seen as contenders during vacancy periods on the Supreme Court were “significantly more likely” to write dissenting opinions favouring a president’s stance.
A conservative White House can be expected to nominate more conservative federal judges to fill district and circuit courts.
Goldman notes that judges are human beings with career ambitions. He knew of an appeals court judge with previous Supreme Court ambitions who, during a Republican administration, changed to an independent from a Democrat.
“He became more cautious in his decisions, leaning more to the conservative side.”
Owens says it’s unclear if this kind of auditioning could have a longterm effect on legal decisions.
“There’s nothing all that unusual about what Trump is trying to do with his nominations. All presidents engage in this,” he said. “But if there’s one thing Trump has done very, very effectively, it’s this.”
Let’s block ads! (Why?)
CBC | World News