McConnell puts mark on courts
Senate leader is shaping Trump legacy by reshaping judiciary for generations to come
President Donald Trump and Senate Majority Leader Mitch McConnell, R-Ky., are rapidly filling U.S. federal courts with young conservatives who will shape American law for generations to come.
The Republican-led Senate confirmed Trump’s 15th appeals court nominee last week — more than the last five presidents at this juncture — with eight of the new judges in their 40s, and seven in their 50s. McConnell set the stage Thursday to confirm six more, one day after a committee voted to cut debate time, which if approved would further speed things up.
The court realignment is the product of the Senate Republican leader playing a long game by holding up then-President Barack Obama’s court nominees and then closely collaborating with Trump’s White House counsel Don McGahn. Both men have made it a priority to advance judges ensconced in originalist legal thinking favored by the Federalist Society, which distrusts New Deal-era jurisprudence and seeks to limit the federal government’s ability to assert powers that aren’t explicitly enumerated in the Constitution.
“The judicial enterprise that has been embarked on by the president and McConnell is the most successful effort we’ve seen in the GOP in the last year and a half,” said Leonard Leo, an outside adviser to the White House on judicial selections who also serves as the Federalist Society’s executive vice president.
Trump’s record also includes 17 Trump-nominated judges on district courts, and conservative favorite Neil Gorsuch is on the Supreme Court after McConnell made the extraordinary move of refusing to consider Obama nominee Merrick Garland in 2016.
While liberals have torched the new judges as radical and out of touch, Trump has won praise for his success on nominees from conservatives, even those who actively opposed him during the 2016 election.
In 2016, Jonathan Adler, a professor at Case Western Reserve University School of Law, and a Federalist Society member who praised Trump’s judicial picks as strong, signed a letter titled “Originalists Against Trump” with five dozen fellow conservatives who argued that Trump “admires dictators as above the law” and cannot be trusted to respect the Constitution.
Today, he says he was “very wrong” about that when it comes to Trump’s judicial selections, although he believes the heavy lifting is being done by McGahn and his staff, who’ve placed a premium on confirming their circuit court picks.
“I don’t see much evidence that the president has fully formed views on legal questions,” Adler said.
Yet some conservative believe it’ll be his biggest legacy.
“His greatest achievement will be the judicial nominees because it has a much longer-lasting legacy” than his other actions, said Rep. Mark Meadows, RN.C., chairman of the conservative House Freedom Caucus.
Trump and McConnell are having their biggest impact on the 13 U.S. appeals courts, which are particularly influential. While the Supreme Court decides fewer than 70 cases a year, appellate courts ruled on or dismissed 59,040 cases for the year ending March 31, 2017, according to the Administrative Office of the U.S. Courts in Washington.
Liberal legal analysts, who have accused McConnell of stealing a Supreme Court seat from Obama, say they are troubled by Trump’s judicial selections and the speed of confirmations.
“He’s had a very effective process for moving judicial nominees, which is unfortunate because the quality of his nominees is so lacking,” said Caroline Fredrickson, president of the American Constitution Society, adding that Trump’s picks would feel at home in the 19th century. “They’re unqualified in certain circumstances. They’re extreme in nearly all circumstances.”
The judges he’s chosen are likely to roll back women’s rights — including abortion — civil rights, voting rights, gay rights, and allow billionaires to “buy politicians,” Fredrickson said.
“It’s as if the civil rights movement and the women’s rights movement have been erased as far as Donald Trump is concerned,” she said.
The latest circuit judge, confirmed April 24 by the Senate, was Kyle Duncan to the 5th U.S. Circuit Court of Appeals. He came under fire from the Human Rights Campaign for an “alarming” record of “anti-LGBTQ advocacy,” earning just one Democratic vote to squeak by 50 to 47.
Trump has other opportunities. On Thursday he announced another eight nominations for district and appellate courts. Conservatives are eager to confirm as many nominees as they can this year while Republicans have a 51-49 majority, fearing a possible Democratic takeover of the Senate in November could slow them to a crawl in 2019.