President Donald Trump’s opportunity to name a new Supreme Court justice to replace the retiring Justice Anthony Kennedy caps a reshaping of the U.S. federal judiciary that has already been long under way.
Well before Kennedy announced his retirement last week, Trump began quietly and methodically naming conservatives to federal courts, including a record number of jurists to the powerful courts of appeals that are just one rung below the Supreme Court.
The lifetime appointments of relatively young judges with solidly conservative records will all but ensure Trump’s mark on the federal judiciary — and on American society — for a generation to come.
“The judge story is an untold story. Nobody wants to talk about it,” Trump said at the White House in May.
“But when you think about it,” he added, standing next to Senate Majority Leader Mitch McConnell, “Mitch and I were saying, this has consequences 40 years out, depending on the age of the judge — but 40 years out.”
Trump campaigned for the White House on the promise to name conservatives to the Supreme Court and other federal benches.
When he took office, Trump inherited more than 100 vacancies in the federal judiciary, thanks to Republican efforts block virtually all judicial nominations during the final two years of former President Barack Obama’s term.
Federal judges require Senate confirmation. Until recently, the minority party in the Senate — now the Democrats — could block judicial nominations through a parliamentary procedure known as the filibuster.
But with the procedure abolished in recent years, first for federal judges and then for Supreme Court justices, the Republicans have been able to push through Trump’s judicial nominees even with their razor-thin majority in the Senate.
According to the Alliance for Justice, Trump has had 21 federal appeals judges confirmed by the Senate during his 17 months in office, far outpacing the rate held by former Presidents Obama and George W. Bush at this point in their first terms.
But the president has had less success with appointments at the district level. Out of his 96 nominees for district courts, just 20 have been confirmed, fewer than Obama’s and Bush’s records.
The power of federal judges has been on full display over the past year and a half. Federal judges temporarily blocked Trump’s so-called “travel ban” and his decision to end the program that protects from deportation undocumented immigrants who were brought to the U.S. as children.
Trump has denounced the court rulings by district judges, but in his judicial appointments he has prioritized nominating federal appeals judges.
That is because federal appeals courts are the final arbiter in the overwhelming majority of federal cases, said John Malcolm, director of the Meese Center for Legal and Judicial Studies at the Heritage Foundation, an influential conservative think tank that advises the White House on judicial selections. (The Federalist Society is another conservative group that helps the White House select judicial candidates.)
The Supreme Court takes up between 70 and 75 cases a year, compared with more than 50,000 cases filed in federal appeals courts.
“On a number of important constitutional and statutory cases, they’re often the last word,” Malcolm said. “So, the people who sit on those courts can have a very large impact on the direction of the law.”
Some controversial nominees
Trump’s judicial candidates have not been without controversy. One was forced to withdraw his candidacy after it was disclosed that he’d called transgender children part of “Satan’s plan.”
Liberals have been sounding the alarm about a “right-wing takeover” of the federal courts, pointing to the decisive votes Trump-nominated judges have cast in a string of court cases.
“He has picked people who have been ideologically far to the right,” said Caroline Fredrickson, president of left-leaning American Constitution Society (ACS).
Trump allies defend the president’s selections as sound choices that will restore the judiciary’s role as the interpreter of laws.
White House Counsel Don McGahn, who spearheads judicial selections for Trump, said earlier this year that the president wants judges who have a “commitment to the notion of a rule of law” and who “read the law as written.”
“He ran on the idea of the judicial branch needing some help. He’s delivered on those promises,” McGahn said at the Conservative Political Action Conference in February.
Currently, about 17 percent of federal judgeships are vacant. With more likely to open up over the next two years, Trump could end up appointing 15 percent to 20 percent of the judiciary by the end of his current term, said Fredrickson, of the ACS.
Republicans hope to keep control of the Senate after the November congressional elections, which would allow them to swell the ranks of the judiciary with Trump’ nominees.
McConnell, a key Trump ally on judicial selections, said in May that if Republicans keep their majority in the Senate, “we can do this for two more years, so that through the full four years of President Trump’s term, he will make a lasting generational contribution to the country, having strict constructionists on the court.”
On the other hand, a Democratic takeover of the Senate could effectively put an end to Trump’s judicial appointments, Fredrickson said.
“There will be no more judges confirmed unless they happen to be people recommended by Democratic senators,” she said.