Trump’s judicial picks start to flex muscles
Votes, rhetoric offer clues to how nation could shift
WASHINGTON – The men and women President Trump elevated to federal judgeships across the nation are having an impact on issues ranging from civil rights and campaign spending to public prayer and the death penalty.
Nearly a year after the first of them won Senate confirmation, 15 nominees have made their way to federal appeals courts, representing perhaps Trump’s most significant achievement in his 15 months as president. A dozen more are in the pipeline.
Though it’s too soon to detect a definitive trend, Trump’s judges make their presence felt through the weight of their votes and the style of their rhetoric.
Judge Amul Thapar of the U.S. Court of Appeals for the 6th Circuit led the way last May and has amassed the largest body of work. He helped uphold Ohio’s method of lethal injection, as
well as a Michigan county’s practice of opening government meetings with Christian prayers.
Judge James Ho, a more recent addition to the 5th Circuit Court of Appeals, dissented from its refusal to reconsider a challenge to strict campaign contribution limits in Austin that he said violate the First Amendment.
Judge Amy Coney Barrett of the 7th Circuit Court of Appeals helped block the U.S. Equal Employment Opportunity Commission’s attempt to stop an employer from transferring Chicagoarea employees based on their race or ethnicity.
Three judges named by Trump to the 8th Circuit Court of Appeals — Ralph Erickson, Steven Grasz and David Stras — joined in its refusal to reconsider a Missouri inmate’s plea to change his method of execution because a rare health condition could make lethal injection too painful. The Supreme Court nevertheless agreed to hear the case next fall.
Trump’s judges have ruled in favor of police, prison guards and a male student seeking the right to face his accuser in a sexual assault case, as well as against a naturalized citizen fighting his loss of citizenship.
The early results please conservatives and concern liberals.
“It usually takes a little while before new judges assert themselves,” said Jonathan Adler, a professor at Case Western Reserve University School of Law. Trump’s judges, he says, already are showing “signs of independence and thoughtfulness.”
“What we’ve seen so far, I think, is certainly disturbing,” said Elliot Mincberg, a senior fellow at People for the American Way, which bills itself as an advocacy organization founded to fight right-wing extremism and defend constitutional values. “These are certainly very right-wing judges.”
Few of their votes have been decisive. Most of Trump’s appellate judges serve on courts already dominated by Republican presidents’ choices. Many — including those named to the 3rd,
10th and all-important District of Columbia circuits — have yet to make their impact felt. Trump’s 17 confirmed nominees to federal district courts operate largely beneath the radar,
Even so, Senate Majority Leader Mitch McConnell, R-Ky., made confirmation of Trump’s judges his top priority this year, telling conservative radio host Hugh Hewitt on Thursday that “strict constructionists” in their late
40s and 50s are “making a generational change in our country that will be repeated over and over and over, down through the years.”
Some of those strict constructionists have not always been predictable. Trump’s first and most important nominee, Supreme Court Justice Neil Gorsuch, sided with liberals last month in ruling that a law subjecting non-citizens to deportation for crimes of violence is unconstitutionally vague. Such laws, he said, “can invite the exercise of arbitrary power.”
One of Trump’s most controversial picks — 6th Circuit Judge John Bush, who had penned a blog post under a pseudonym comparing abortion to slavery — ruled in favor of a Mexican woman seeking asylum in the USA. He was backed by two judges appointed by Democratic presidents.
“We and our sister circuits have found a real threat of individual persecution when an applicant presented evidence describing threats of harm,” Bush wrote.
Curt Levey, president of the conservative Committee for Justice, said the decision shows that Trump’s judges are “believers in textualism and the rule of law, rather than ideological conservatives who might decide cases based on their personal political beliefs.”
Since coming to office, Trump has nominated more than 100 federal judges, and the Senate has confirmed
33. Twelve circuit court nominees and
58 district court nominees are in the pipeline. The speed and efficiency of the process far outpaces past Democratic and Republican administrations.
It helped that Trump inherited more than 100 lower court vacancies and that Democrats changed Senate rules in 2013 to block Republicans from bottling up nominations with just 41 votes. Now Republicans are in the majority — barely — and united on the president’s appeals court choices.
Together, they are pushing back against the liberal tilt of the appellate courts, two-thirds of which are controlled by judges named by Presidents Obama and Clinton.