Judicial revolution

A stream of conservative judges are being seated

The first year of Donald Trump’s presidency has been turbulent and controversial, but not without its successes. A big victory for conservatives has been Mr. Trump’s approach to the judiciary.

The president took office in January with more than 100 judicial vacancies on the federal courts, from the district courts up to the Supreme Court. Given how incompetent the Trump administration can be, it has approached this challenge with remarkable effectiveness.

So far, the Senate has confirmed 12 nominations for appellate courts, with another seven still under consideration. The Senate’s pace on district courts has been slower, with just six confirmed so far, but dozens of nominees are working their way through the

It is likely that the pace will quicken through 2018. It took the Trump White House a couple of months to get its internal vetting process up and running. Now that it is, more selections will be sent to the presidentfor approval.

Moreover, Senate Judiciary Chairman Chuck Grassley has started ignoring Democratic “blue slips,” an informal practice that gives certain senators a veto over judicial nominees, whichshould speed Senate action.

A top priority has been to avoid nominations such as that of David Souter, who President George H.W. Bush selected for the Supreme Court in 1990. Justice Souter had no experience on a federal court, and he turned out to be a reliable liberal on the Supreme Court, undermining Mr. Bush’s desire to swing it to the right.

The Trump team has avoided this pitfall by nominating judges with clear conservative track records. Mr. Trump’s judges often have clerked for one of the conservatives on the Supreme Court, come recommended by conservative groups such as the Heritage Foundation and the Federalist Society, or have demonstrated their conservative bona fides either through judicial rulings or academic papers.

Credit for this barrage of nominations goes largely to White House counsel Don McGahn, who has seen to it that a steady stream of judicial nominations is offered to the Senate. Ironically, former Senate Majority Leader Harry Reid, a Democrat, also deserves some credit. It was his political shortsightedness that created Mr. Trump’sopportunity.

Senate Democrats and Republicans have tussled over judicial nominations for generations, although the partisan brawling has become acute over the past decade. In 2005, Republicans had complete control of the government, but the Democratic minority in the Senate was large enough to “filibuster,” that is, indefinitely delay votingon judicial nominations.

Democrats decided to filibuster a number of President George W. Bush’s nominations, and Republicans responded with a threat to eliminate the filibuster for judicial nominations. Ultimately, a compromise was reached that allowed some of Mr. Bush’s nominations to go through, while retaining the filibuster.

Fast forward to 2013. Democrats are in charge of the Senate and Barack Obama is president. Now it is the Republicans who filibuster. Mr. Reid and Senate Democrats elect to eliminate the judicial filibuster, thus clearing the way to confirm a number of Obama appointees whose nominations the Republicans had prevented fromcoming to a vote.

It seemed like a smart move at the time from the perspective of Beltway Democrats, who were unduly confident that they could maintain control of the Senate and White House. But thatwas not to be.

Republicans took charge of the Senate in 2014 and blocked even more Obama judicial appointees, leaving an unusually large number of vacanciesthat Mr. Trump is now filling.

Looking ahead to 2018, there are two big questions about the future of the courts. Will Republicans hold the Senate in next year’s midterms? If they do, the White House will continue to deliver a steady stream of nominations, and the Trump revolution on the courts will be comprehensive.

Question 2: Will Anthony Kennedy, the swing vote on the Supreme Court, retire? If he does, Mr. Trump surely will nominate a young conservative to replace him, securing a conservative majority for what could be another generation.