Trump is rapidly reshaping the judiciary. Here’s how.
Eight judges appointed so far to appeals court
WASHINGTON — In the weeks before Donald J. Trump took office, lawyers joining his administration gathered at a law firm near the Capitol, where Donald F. McGahn II, the soon-tobe White House counsel, filled a white board with a secret battle plan to fill the federal appeals courts with young and deeply conservative judges.
Mr. McGahn, instructed by Mr. Trump to maximize the opportunity to reshape the judiciary, mapped out potential nominees and a strategy, according to two people familiar with the effort: Start by filling vacancies on appeals courts with multiple openings and where Democratic senators up for re-election next year in states won by Mr. Trump — like Indiana, Michigan and Pennsylvania — could be pressured not to block his nominees. And to speed them through confirmation, avoid clogging the Senate with too many nominees for the district courts, where legal philosophy is less crucial.
Nearly a year later, that plan is coming to fruition. Mr. Trump has already appointed eight appellate judges, the most this early in a presidency since Richard M. Nixon, and on Thursday, the Senate Judiciary Committee voted along party lines to send a ninth appellate nominee — Mr. Trump’s deputy White House counsel, Gregory Katsas — to the floor.
Republicans are systematically filling appellate seats they held open during President Barack Obama’s final two years in office with a particularly conservative group of judges with life tenure. Democrats — who in late 2013 abolished the ability of 41 lawmakers to block such nominees with a filibuster, then quickly lost control of the Senate — have scantpower to stop them.
Most have strong academic credentials and clerked for well-known conservative judges, like Justice Antonin Scalia. Confirmation votes for five of the eight new judges fell short of the former 60-vote threshold to clear filibusters, including John K. Bush, a chapter president of the Federalist Society, the conservative legal network, who wrote politically charged blog posts, such as comparing abortion to slavery; and Stephanos Bibas, a University of Pennsylvania law professor who once proposed using electric shocks to punish people convicted of certain crimes, although he later disavowed the idea. Of Mr. Trump’s 18 appellate nominees so far, 14 are men and 16 are white.
Whilethe two parties have been engaged in a tit-for-tat escalationof hardball politics over judicial nominations since the Reagan years, the Trump administration is completing a fundamental transformation of the enterprise. And the consequences may go beyond his chance to leave an outsize stamp on the judiciary. When Democrats regain power, if they follow the same playbook and systematically appoint outspoken liberal judges, the appeals courts will end up as ideologically split as Congressis today.
For now, conservatives arereveling in their success. During the campaign, Mr. Trump shored up the support of skeptical right-wing votersby promising to select Supreme Court justices from a list Mr. McGahn put together with help from the Federalist Society and the conservative Heritage Foundation. Exit polls showed that court-focused voters helped deliver the president’s narrow victory. Now,he is rewarding them.
Appellate judges draw less attention than Supreme Court justices like Neil M. Gorsuch, whom Mr. Trump installed in the seat that Justice Scalia’s death left vacant and that Republicans, led by Mr. McConnell, refused to let Mr. Obama fill. But the 12 regional appeals courts wield profound influence over Americans’ lives, getting the final word on about 60,000 cases a year that are not among the roughly 80 the Supreme Court hears.
Nan Aron, of the liberal Alliance for Justice, said that her group considered many of Mr. Trump’s nominees to be “extremists” — hostile to the rights of women, minority groups and workers, and unduly favorable to the wealthy. But conservatives, who have rallied around Mr. Trump’ s nominees as a rare bright spot of unity for the fractious Republican Party, see them as legal rock stars who will interpret the Constitution according to its text and originalmeaning.
And they see tremendous opportunity in the fact that Mr. Trump is the first Republican president whose nominees can be confirmed by simple-majority votes, especially since he is likely to fill an unusually large number of vacancies. Mr. Trump started with 21 open appellate seats because after Republicans gained control of the Senate in 2015, they essentially shut down the confirmation process. Six additional appellate judgeships have opened since his inauguration, and nearly half of the 150 active appeals court judges are eligible to take senior status — semiretirement that permits a successor’s appointment — or will soon reach that age, according to Russell Wheeler, a Brookings Institution scholar.
As a result, Mr. Trump is poised to bring the conservative legal movement, which took shape in the 1980s in reaction to decades of liberal rulings on issues like the rights of criminal suspects and of women who want abortions, to a new peak of influence over American law and society.