Trump, GOP reshaping U.S. appellate courts at a rapid pace

WASHINGTON — In the weeks before Donald Trump took office, lawyers joining his administration gathered at a law firm near the Capitol, where Donald F. McGahn II, the soon-to-be White House counsel, filled a white board with a secret battle plan to fill the federal appeals courts with young and deeply conservative judges.

McGahn, instructed by Trump to maximize the opportunity to reshape the judiciary, mapped out potential nominees and a strategy, according to two people familiar with the effort: Start by filling vacancies on appeals courts with multiple openings and where Democratic senators up for re-election next year in states won by Trump could be pressured not to block his nominees. And to speed them through confirmation, avoid clogging the Senate with too many nominees for the district courts, where legal philosophy is less crucial.

Nearly a year later, that plan is coming to fruition. Trump has appointed eight appellate judges, the most this early in a presidency since Richard M. Nixon, and on Thursday, the Senate Judiciary Committee voted along party lines to send a ninth appellate nominee — Trump’s deputy White House counsel, Gregory Katsas — to the floor.

Republicans are systematically filling appellate seats they held open during President Barack Obama’s final two years in office with a particularly conservative group of judges with life tenure. Democrats — who in late 2013 abolished the ability of 41 lawmakers to block such nominees with a filibuster, then quickly lost control of the Senate — have scant power to stop them.

Most have strong academic credentials and clerked for well-known conservative judges, such as Justice Antonin Scalia. Confirmation votes for five of the eight new judges fell short of the former 60-vote threshold to clear filibusters, including John K. Bush, a chapter president of the Federalist Society, the conservative legal network, who wrote politically charged blog posts, such as one comparing abortion to slavery; and Stephanos Bibas, a University of Pennsylvania law professor who once proposed using electric shocks to punish people convicted of certain crimes, although he later disavowed the idea.

When Democrats regain power, if they follow the same playbook and systematically appoint outspoken liberal judges, the appeals courts will end up as ideologically split as Congress is today.

Appellate judges draw less attention than Supreme Court justices. But the 12 regional appeals courts wield profound influence over Americans’ lives, getting the final word on about 60,000 cases a year that are not among the roughly 80 the Supreme Court hears.