Lessons in packing the courts
If only diamonds are forever, federal judges are the next best thing. They form the nuclear isotope of a presidency, radiating energy long after their patrons have left the White House. Article III of the Constitution establishes the judiciary as an independent branch of the government, but who wields judicial power is dependent on who occupies the Oval Office.
Jimmy Carter’s incumbency ended in January 1981, before the world heard the name Indiana Jones and before Olivia Newton-John sang “Let’s get physical.” Yet Carter’s imprimatur endures in Ruth Bader Ginsburg and Stephen Breyer, whom he nominated to circuit courts of appeals from which they were promoted to the U.S. Supreme Court.
Or consider Ronald Reagan. Some 14 years after Reagan’s death in 2004, nine of his appeals court judges and 13 district court judges are still active today. Dozens of Reagan appointees continue to decide cases and issue opinions on senior status.
So while most of the media’s attention darts and swats at the president’s Twitter feed like a cat chasing a laser pointer, let’s spend a moment on one aspect of the Trump administration that is built to last. When it comes to nominating judges, the Trump White House purrs like a well-oiled machine.
As of Monday, when the White House announced its “seventeenth wave of judicial nominations” — picture Marines storming a beach — President Donald Trump has nominated two Supreme Court justices, 36 court of appeals judges and 99 district judges.
That’s 137 judges in roughly 19 months on the job. If he maintains this pace, Trump could replace more than 30 percent of all active judges by the end of his first term.
Long after the timer dings on Michael Avenatti’s 15 minutes of fame — indeed, long after Trump hangs up his hairbrush and downs his last cheeseburger — Trump judges will still be influencing American lives.
Credit (or blame, depending on your point of view) for this enduring achievement belongs in several accounts. The most important is Trump’s. Beset by rats and flippers, he knows that the conservative base of the Republican Party will remain loyal as long as he’s busy stocking the courts with their brand of judges. Infighting and backstabbing are tolerated — even encouraged — in some parts of Trump’s operation, but he brooks none in the judge-making factory.
White House Counsel Donald McGahn, a libertarian with his own rock band, works in tandem with Leonard Leo of the conservative Federalist Society to keep a steady stream of bright, right-wing prospects rolling along the assembly line. Their results haven’t been perfect: One nominee to a U.S. District judgeship wilted when asked basic questions about conducting a trial. But they have been skillful enough to leave Democrats few openings to knock nominees from the conveyor belt.
Criticized for failing to nominate enough women, McGahn and Leo ordered up two from the factory this week. Allison Jones Rushing, of the Washington superfirm Williams & Connolly, was tapped for the U.S. Court of Appeals for the 4th Circuit. Her résumé includes clerkships with not one, not two, but three pillars of the conservative judiciary: Justice Clarence Thomas, Judge David Sentelle of the District of Columbia appeals court and Justice Neil Gorsuch (when he was serving on the U.S. Court of Appeals for the 10th Circuit).
Bridget Shelton Bade’s destination is the powerful U.S. Court of Appeals for the 9th Circuit, whose jurisdiction includes California. A former U.S. prosecutor, Bade has only one clerkship on her résumé, but it is a doozy in terms of certifying conservative bona fides: Her boss was Judge Edith Jones of the 5th Circuit, an icon of the right.
Even so, as President Barack Obama learned during his last years in office, nominating judges is futile if the Senate won’t confirm them. Majority Leader Mitch McConnell and Judiciary Committee Chairman Charles Grassley have a machine of their own humming on Capitol Hill. As of this writing, 53 Trump judges have been confirmed, and 43 more have cleared Grassley’s committee. According to CNBC, Leo told a group of conservative donors this summer that he expects more than a quarter of all federal appeals court judges will be Trump picks by year’s end.
McConnell’s ability to leverage a mere one-vote margin to such effect suggests another factor in Trump’s judge-making prowess. In 2013, thenMajority Leader Harry Reid rallied his Democrats to eliminate the filibuster for most confirmations. A prescient McConnell warned Reid’s caucus at the time: “You’ll regret this. And you may regret it a lot sooner than you think.”
The time has arrived. Having undone the Senate’s traditional role as a moderating brake on presidential agendas, Democrats are now powerless to slow Trump’s judicial juggernaut. This is what happens when short-term thinking is applied to long-term institutions — an approach that is, sad to say, epidemic in today’s Washington.