Trump's Presidency Is Over. His Judges Will Be Here For Decades.
Donald Trump's presidency ends in a few weeks. But the 230+ people he put in lifelong federal courts will shape the law of the nation for decades.
Trump will step down after confirming at least three Supreme Court justices, 54 Appeal Court justices, 174 District Court justices and three judges on the U.S. Court of International Trade. The Senate could uphold more of its court decisions before leaving. All of these judges are Article III Judges, which means that they have their jobs for life.
How does his record compare to other recent presidents?
In terms of number, Trump confirmed more lifelong federal judges than Presidents Barack Obama (175), George W. Bush (206) and Bill Clinton (204) in their first term.
Without Senate Majority Leader Mitch McConnell (R-Ky.), He couldn't have made it. Not only did the GOP leader make it a top priority to uphold Trump's court decisions - he even enforced them when the COVID-19 emergency legislation stalled - but actively delayed or blocked Obama's judicial candidates for years to make it happen Keep the court seats vacant for a future Republican president to occupy them. Trump did just that.
"What McConnell wanted is courts that will be here for decades after voters turn down Republicans, when they do. Courts that are themselves extremely active when it comes to the welfare state and the ability of federal government to do a lot, blow up, "said Norm Ornstein, a resident scientist at the American Enterprise Institute, a conservative think tank." I don't know how successful they will be. But for the most part, this Supreme Court gave Trump everything he wanted in terms of exercising executive power. "
Trump is also stepping down after filling almost every vacancy on an appeals court. It's a remarkable achievement. No other president has confirmed so many appellate judges in one term. In other words, nearly every third appellate judge is now a Trump election.
"What we've seen is not just Trump appointing many judges for everyone to talk about, but also his bulldozer-like preoccupation with appointing appellate courts," said Russell Wheeler, visiting scholar in the Governance Studies Program and president of the Brookings Institution non-partisan think tanks The Governance Institute. "They are now filling vacancies in district courts because they no longer have any appeals court positions to fill."
This has been the plan all along. Trump's White House has for years focused on validating judges in the country's 13 appellate courts. These courts, which are just a step below the Supreme Court, don't get the conspicuous coverage that the Supreme Court receives. But they're incredibly powerful, and this is where most of the federal laws are regulated on important issues like the death penalty, abortion, same-sex marriage, and immigration.
In some ways, appeals courts resolve around 50,000 cases annually. The Supreme Court decides about 100.
President Donald Trump has tried three people before the Supreme Court in four years. That is a lot. It would not have happened if Senate Majority Leader Mitch McConnell (R-Ky.) Had blown up the rules and traditions of the Senate. (Photo: Jim Bourg / Reuters)
This does not mean that President-elect Joe Biden has no seats on the Court of Appeal to fill. A number of Democratic-appointed appellate judges have likely waited for Biden to become president before announcing their resignation, said Carl Tobias, a professor of law at Richmond University and an expert on judicial nominations.
"It's not as bleak as it looks," said Tobias. "And it's worth noting that while Trump has filled so many appeals court positions, two-thirds of them replaced Republicans. So it's not as dramatic as replacing more Democratic candidates."
Still, he said, many of Trump's judges are incredibly young, in their 30s and 40s, which means, "You will have some of these people around forever."
Trump's judges are also incredibly homogeneous, especially his selection for appeals courts. Think of dozen of Vice President Mike Pence's clones: white, male, right wing ideologues. None of his 54 judges on the court of appeal are black.
Ten of his candidates for life federal court seats have been classified as unqualified by the American Bar Association. Its youngest, now-USA. District judge Kathryn Kimball Mizelle received the miserable rating due to her lack of experience. At 33, she does not meet the ABA's requirement that a candidate for a lifelong federal court has at least 12 years of experience in the legal profession. Mizelle has only been a practicing attorney since 2012 and has never tried a civil or criminal case as a senior attorney or co-counsel.
Of course, Trump did not choose these nominees himself. Most of them were brought to him by the Federalist Society, a conservative legal organization that has invested heavily in bringing its members to appeals courts and the Supreme Court. All three of Trump's Supreme Court picks are members of the Federalist Society. Virtually all of its appellate courts are members. Some of its local courts are also members. And their résumés often include trainee lawyers with other powerful judges who - wait - are members of the Federal Society.
Federal judges who are members of the Federalist Society have one more thing in common: They usually have a record of being hostile to abortion rights, LGBTQ rights, voting rights, and the Affordable Care Act.
You will have some of these people with you forever.
Carl Tobias, Professor of Law at the University of Richmond
Biden signals that he wants a more progressive and diverse Bundesbank and has already promised to nominate a black woman for the Supreme Court. His advisors say he will have a list of potential candidates ready by inauguration day, including a short list for the Supreme Court, where the oldest judge, Clinton-appointed Stephen Breyer, is 82 years old.
"His approach to broad-based nominations ensures that the people in these positions reflect America in terms of diversity and ideology," said a spokesman for the Biden transition team, who spoke only broadly about his considerations on judicial and executive decisions.
"With other nominations and appointments, Biden expected to work with the Senate on highly qualified candidates at a moment when the country is in crisis," the spokesman said. "He expects a good faith commitment when proposing qualified, experienced candidates."
But so much of Biden's agenda for judges and others hangs in the balance ahead of the Georgia Senate runoff in January. The outcome of these elections will determine which party controls the Senate for the next two years.
Even if one of Georgia’s two Republican Senators, David Perdue and Kelly Loeffler, holds on to his seat, which is likely, McConnell will remain majority leader. That means Biden must prepare for the kind of unshakable obstacle Obama faced in upholding his court decisions.
"I don't think McConnell will even confirm many of Biden's nominees," said Wheeler. “Some people have said that maybe Joe and Mitch would get together, these old friends, these Senate club members, will sort things out. I don't think that's going to happen. "
McConnell has thrown out so many Senate rules and norms that he and his party benefit from it, Wheeler added, that he wouldn't be surprised if Supreme Court Justice Clarence Thomas retired in January and McConnell Biden prevented him from occupying that seat for his entire four years of office.
"It's bleak," he said of his assessment. "But I've been studying this stuff that goes back to the Johnson administration. The Senate just had one other idea that a president could appoint judges. Now it's been dog-eat-dog and we'll worry about ours tomorrow Dog has eaten too much. "
Eric Murphy is a Federalist Society member who was confirmed in his life seat on a U.S. appeals court in 2019 at the age of 39. As a lawyer, he repeatedly cited efforts to make it more difficult for people to vote. (Photo: Tom Williams via Getty Images)
Ornstein agreed that Biden will have a difficult path ahead of him, and not just because of McConnell. The fact that virtually all Senate Republicans routinely voted with McConnell to block Obama's court decisions means that they also don't seem to care that a president has the right to vote on his candidates.
"I can talk about McConnell or Trump all night, but the stain here on the verification process - just the whole concept of what the judiciary is supposed to be - is widespread throughout the Republican Senate body," Ornstein said. "Every single one of them."
If Republicans hold the Senate, Biden could try to be better measured against the types of justice candidates he suggests in hopes of getting them through. For example, you would probably not be as progressive as some in his party might want.
He will likely have to work with GOP senators to select candidates they can all support for open positions in their home states.
He could also close deals that allow a package of Republican and Democratic candidates to go through together.
“Biden will be forced to trade horses like Clinton had to do. He had to bank the Republicans to get his Democrats through, ”said Brian Fitzpatrick, a law professor at Vanderbilt University and former Supreme Court nominations special advisor to Senator John Cornyn, R-Texas. "I suspect McConnell will have an even tougher business and Biden will likely have to attract even more Republicans than Clinton."
Regardless of which party controls the Senate, Biden will take office on January 20, 2021. Around 43 positions at district courts and two positions at appeal courts are to be filled. And as a former longtime chairman of the Senate Judiciary Committee and former vice president, Biden feels like he knows the Senate verification process better than almost anyone.
"I'm optimistic about Biden. He'll get it. He's got good people around who will do this job," said Tobias. "I think it will depend on how much Biden is willing to compromise. He and McConnell could get some kind of understanding. "
"It might not be pretty," he added, "but it could fill the dishes."
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This article originally appeared on HuffPost and has been updated.
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