Trump’s imprint felt on the bench
Adding hundreds of federal judges will define his term
WASHINGTON — On this, even President Donald Trump’s most fevered critics agree: He has left a deep imprint on the federal courts that will outlast his one term in officefor decades to come.
He used the promise of conservative judicial appointments to win over Republican skeptics as a candidate. Thenaspresident, he relied on outside conservative legal organizations and Senate Majority Leader Mitch McConnell to employ an assembly line-like precision to install more than 230 judges on the federal bench, including the three newest justices of the Supreme Court. Trump never tired of boasting about it.
Undeterred by Democratic criticism, the Senate wasstill confirming judges more than a month after Trump lost his reelection bid to Joe Biden.
“Trump has basically done more than any president has done in a single term since (President Jimmy) Carter to put his stamp on the judiciary,” said Jonathan Adler, a law professor at Case Western Reserve University School of Law in Cleveland.
Congress created about 150 new judgeships during Carter’s presidency, he said.
Among the Trump-appointed judges, who hold lifetime positions, several are still in their 30s. The three Supreme Court picks could still be onthe court at the 21st century’s midpoint, 30 years from now. And 30% of the judge son the nation’ s court of appeals, where all but a handful of cases reach their end, were appointed by Trump.
But the real measure of what Trump has been able to do will be revealed in countless court decisions in the years to come on abortion, guns, religious rights and other issues.
When it came to the president’s own legal challenges of the election results, however, judges who have him to thank for their position rebuffedhis claims.
But in many other important ways, his success with judicial appointments already is paying dividends for conservatives.
When the Supreme Court blocked New York from enforcing certain limits on attendance at churches and synagogues in areas designated as hard hit by COVID19, Justice AmyConeyBarrett — the newest member of the court — cast the decisive fifth vote. Previously, thecourthad allowed restrictions on religious services over the dissent of four justices, including the other two Trump nominees, NeilGorsuch andBrett Kavanaugh.
Five Trump appointees were in the majority of the 6-4 decision by the full 11th U.S. Circuit Court of Appeals in September that made it harder for felons in Florida to regain the right to vote. The Atlanta-based court had a majority of Democratic-appointed judges when Trump took office.
Last month, Judges Britt Grant and Barbara Lagoa, both named by Trump, formed the majority on a three-judge 11th Circuit panel that struck down local Florida ban son therapy that seeks to change the sexual orientation of LGBTQ minors. Other appeals courts around the country have upheld the conversion therapy bans.
In one early look at Trump’s appointees to federal trial courts, political science professors Kenneth Manning, Robert Carp and Lisa Holmes compared their decisions with more than 117,000 opinions published dating to 1932.
“Trump has appointed judges who exhibit a distinct decision-making pattern that is, onthe whole, significantly more conservative than previous presidents,” the political scientists concluded in a working paper in October.
The president has had several partners in the judicial effort, but none more important than McConnell, who takes particular pride in reshaping the Supreme Court.
“I think it’s far and away the most consequential thing I’ve ever been involved in,” McConnell, 78, said.
They might not have called it a partnership at the time, but their mutually reinforcing work began even before Trump’s election.
Trump used the issue of the federal judiciary to win trust with voters who might have questions about the conservative credentials of a billionaire real estate developer who had once supported abortion rights and did not have a track record in politics.
He put in writing a list of potential nominees, provided by the conservative Federa list Society and Heritage Foundation, he would select from in filling a Supreme Court vacancy.
As it happens, there was a high court opening at the time, following the death of Justice Antonin Scalia in February 2016.
Enter McConnell. He blocked President Barack Obama’s nomination of Merrick Garland, refusing so much as a hearing for the respected appeals court judge whom Republicans had previously identified as a high court nominee they could support.
It was a gamble at a time when Trump’ s electoral prospects seemed dim, but it paid off with his stunning victory over Hillary Clinton.
And the high court seat wasn’t the only one waiting to be filled when Trump took office in January 2017. Altogether, 104 judgeships were open after Republicans used their Senate majority to grind the nomination process to a near halt in Obama’s final two years in office. Only 28.6% of his nominees were confirmed in that stretch.
The pace quickened almost immediately. In Trump’s first two years, Republicans pushed through 30 appellate court judges and 53 district court nominees. It was the highest number of appellate court confirmations in a two-year period since Ronald Reagan and nearly double the number that Obama secured in his first two years.
McConnell and top Republican son the Senate Judiciary Committee eliminated rules that had allowed the opposition party to delay confirmations, most notably requiring just a simple majority, instead of 60votes, to move Supreme Court nominees. Democrats, bitter over the stalled Garland nomination, otherwise would have blocked Gorsuch’s confirmation in April 2017.
Sen. Sheldon Whitehouse of Rhode Island, a Democrat on the Senate Judiciary Committee and a sharp Trump critic, said Trump’s judicial legacy “is a lot less about what he’s done than what he’s allowed others to do in his name.”
Whitehouse said Trump essentially “outsourced” judicial nominations to McConnell and the Federalist Society, specifically the group’s leader Leonard Leo and former White House counsel Don McGahn, a Federalist Society member who made judicial nominations a top priority.
At the same time, the Federalist Society and other conservative groups have taken millions of dollars in anonymous donations and waged public and behindthe-scenes campaigns for right-wing judges, Whitehouse said.
On the campaign trail and at White House events, Trump would often cite his record on judicial appointments as an example of accomplishment, while ignoring the obstructions that occurred during the Obama years.
“You know, when I got in, we had over 100 federal judges that weren’t appointed,” he said. “Now, I don’t know why Obama left that. It was like a big, beautiful present to all of us.”
Trump omitted that McConnell had blocked Obama’s nominees.