Trump making mark in courts
President moving swiftly to fill seats in federal judiciary
Eleven federal courtrooms in Texas with some of the heftiest criminal and civil case loads in the country have sat empty for years amid political wrangling, including a judgeship in Corpus Christi that has been vacant since 2011. Texas also has two appeals court seats empty since 2012 and 2013.
Now, the Trump administration has been moving swiftly to fill these Texas vacancies, along with 51 others all considered judicial emergencies on district and appeals courts around the country.
And while President Donald Trump has struggled to sign landmark legislation in his first year, his most enduring legacy could be in the federal judiciary. Court watchers of all persuasions say he has rebuffed procedural customs and is on track to fill dozens of lifetime slots where judges have a daily hand in determining sentences, fines and remedies for misconduct, retaliation and environmental threats and deciding who may seek help in the nation’s courts.
Given the number of vacancies and the clear path before him, Trump has the potential to pack the courts and flip the balance for the judiciary from liberal to conservative, observers say.
And the pace of approving these appointments has been dizzying. In all, the president has put forth 59 names for these critical positions.
While former President Barack Obama seated three appeals court judges in his first year, Trump has filled eight appeals court seats in just 10 months, with another nominee likely to be confirmed after the Thanksgiving holiday. That includes the confirmation of 50-year-old Supreme Court Justice Neil Gorsuch, who because of his age could preside over cases for several decades.
Trump’s picks for the bench are predominantly white, male and conservative, with critics claiming some harbor extremist views.
That includes a religious Texas lawyer and top lieutenant of Texas Attorney General Ken Paxton, who was caught on video referencing a transgender firstgrader as “part of Satan’s plan” for destruction.
Trump’s choices for a lifetime appointment to the federal bench include 11 women, one AfricanAmerican and three AsianAmericans, two of whom are slotted for Texas jobs on the district and appellate courts.
And the only Latino nominee is a Yale-educated Rio Grande Valley native tapped for the Corpus Christi vacancy, a top litigator who once taught at a Houston elementary school and now works for a global justice organization combatting sex trafficking. ‘Hyperpartisan’ records
But the majority of Trump’s selections are white and have backed virtues in their public lives that some see as troubling.
“The pattern we see in his nominations so far is unprecedented in the modern era in its lack of diversity,” said Kyle Barry, senior policy counsel for the NAACP Legal Defense Fund. Barry said the list of nominations to the federal judiciary stands out in the candidates’ extreme opposition to civil rights and their “hyperpartisan records.”
The tenor of the nomination process has also shifted, given the GOP has majority control of both legislative branches and the executive branch, observers say.
The nominees to Texas vacancies so far are reflective of a broader national trend, said Stephen Vladeck, who teaches about the federal courts at University of Texas law school.
“There’s been a much more aggressive effort to quickly confirm nominees that will likely have the support of the majority but will have very little support across the aisle,” the professor said. “They’re not the kind of nominees designed to create bipartisan consensus but to take advantage of the fact that the Republicans right now don’t need a consensus.”
Vladeck said Trump’s choices for the bench tend to be more skeptical of rights of criminal defendants and more hostile to civil litigation by private plaintiffs. ‘Originalist’ candidates
Groups pushing for “originalist” candidates in the mold of the late U.S. Supreme Court Justice Antonin Scalia are glad that Trump followed through on his promise not to compromise.
“It’s been thrilling to see the types of judges picked by this administration — some of the brightest legal minds out there — and we’re thrilled particularly in the circuit court where this administration has had the freest hand to chose people,” said Carrie Severino, chief counsel and policy director the Judicial Crisis Network in Washington, D.C.
The White House has named state court judges, academics and “people who are the rising legal stars,” she said. Severino said the nominees share a principled commitment to intent of the Constitution.
But critics say the slate of would-be judges will hinder the courts’ ability to deliver justice.
“They all share an ideology and a commitment to erode rights for women, LGBTQ Americans, minorities, workers and consumers,” said Daniel Goldberg, legal director at the Alliance for Justice, a progressive group dedicated to a fair and independent judiciary.
“They’re all individuals being placed on the bench because they have an agenda and have biases,” he said. Goldberg said the president’s nominees represent a concerted effort by the White House to push a one-sided agenda.
“Conservatives in the Republican party want to achieve through the courts what they’re unable to achieve through the democratic process,” Goldberg said.
For Lambda Legal, a civil rights organization devoted to protecting the rights of lesbian, gay, bisexual and transgender communities, Trump’s picks and the swiftness with which they’ve advanced through the confirmation process portend dire consequences.
“If you poison the judiciary, that’s not something you can just fix,” said Sharon McGowan, strategic director for the organization. “That’s something that will be in the bloodstream of the judiciary for generations and all of us will suffer as a result.” Broken with tradition
Thomas A. Saenz, president and general counsel at the Mexican American Legal Defense and Educational Fund, foresees the on-the-record histories of some Trump nominees could hinder the functioning of the courts.
“So many of the appointments nationwide are extreme thinkers, who from their records, from their statements, are not fit to sit on the federal courts,” he said. “They’re clearly outside the mainstream of legal thinking and they will precipitate more work for the rest of the judicial officers.” He said actions by lawyers to disqualify these partisan judges would clog up the courts because other judges will have to spend time vetting their peers’ work.
In selecting judicial nominees, Trump has broken with tradition on several fronts, streamlining the process and parting with optional checks and balances other presidents strictly observed.
For example, Trump has not observed the tradition of securing blue slips — which signify support — from both state senators before putting a candidate in that state forward for Senate approval. Similarly, he has ditched the practice of allowing nominees to be quietly vetted in advance by non-partisan legal reviewers at the American Bar Association on their character, temperament and likelihood for bias.
As a result, four nominees were scheduled for committee hearings and then after the fact rated “not qualified” by a majority of their peers.
Other procedural changes by Republicans lawmakers have sped up the nomination process. U.S. Sen. Chuck Grassley, R-Iowa, who heads the Senate Committee on the Judiciary, has taken heat from Democratic colleagues for opting to schedule multiple candidates for question-and-answer sessions on a single panel.
Some of these candidates may require the senators to scour tens of thousands of pages of legal records. The vetting process
When Texas Supreme Court Justice Don Ray Willett and Dallas attorney James Ho appeared for questioning about their suitability for the 5th U.S. Circuit Court of Appeals on Nov. 15, U.S. Sen. Dianne Feinstein, D-California, took Grassley and his peers to task, noting it was the third time since May with two circuit court nominees were being vetted at the same hearing.
The California Democrat wondered aloud why Texas GOP Sens. John Cornyn and Ted Cruz were in such a hurry to push these candidates through after they’d sat on the vacancies up since 2012 and 2013.
“Having waited four or five years respectively to come to agreement with the White House on nominees for these vacancies, it would seem that there is no need to rush these nominees through,” Feinstein said, explaining that “both Justice Willett and Mr. Ho have extensive and controversial records and senators deserve to ask questions about them.”
For Lena Zwarensteyn, an expert on the nomination process at the American Constitution Society for Law and Policy, said not allowing enough time for vetting is problematic.
“The administration is taking judicial nominations and confirmations seriously but not the nominees themselves,” she said. “This administration and this Senate is trying to do everything they can to speed up the confirmation process.”
She added, “It’s not to say these nominees don’t deserve a hearing, but with these lifetime appointments it makes sense to have the T’s crossed and the I’s dotted to the extent it’s possible.”