Although he’s been thwarted so far on his legislative agenda before Congress, most notably on health care, President Donald Trump has a big opportunity to reshape another branch of government outside his control: the federal judiciary. He has already moved swiftly to fill an unusual, inherited vacancy on the Supreme Court, and now his aides are working their way through a large number of openings on the lower federal courts. Some of his first picks are up for a Senate committee vote this month.
Justice Neil Gorsuch, with only a few months on the high court under his belt, already embodies the kind of influence Trump seeks to have on the third branch. Gorsuch, who replaced the late Antonin Scalia, reestablished the 5-4 advantage conservatives long enjoyed when it came to most hot-button social issues. Gorsuch has cast consistently conservative votes on such topics as Trump’s travel ban, gun rights, and the separation of church and state. And he doesn’t even turn 50 until August.
It’s actually quite rare for a new president to find a Supreme Court vacancy already waiting. Trump, of course, encountered his good fortune courtesy of Senate Majority Leader Mitch McConnell’s unprecedented 10-month refusal to consider President Barack Obama’s nominee, U.S. Circuit Judge Merrick Garland. The last time a new president had an inherited vacancy was back in 1881, when the beneficiary was President James Garfield.
But this congressional pocket veto of Garland, a 64-year-old moderate and chief of the influential U.S. Court of Appeals in Washington, was simply the most public manifestation of a longer-term strategy. After gaining control of the Senate in 2015, Republicans made it their mission to slow-walk Obama’s nominations for the lower courts. This effort contributed to the relatively large backlog of 107 vacancies on trial and intermediate-appellate courts that Trump inherited. That’s more than what awaited four of Trump’s five immediate predecessors, according to the public-affairs website Ballotpedia. Only President Bill Clinton had more initial vacancies, with 111. By contrast, Obama found only 54 lower-court vacancies when he took office, while President George W. Bush had 84. Trump’s starting batch of 107 represents 12 percent of all 890 federal judicial positions.
Those vacancies, and the ones to come as more judges retire (the number has already jumped to 136 in the six months since inauguration) offer Trump the chance to sculpt the courts to his liking. During the campaign, he said he would “appoint judges very much in the mold of Justice Scalia,” a forceful conservative who unexpectedly died in February 2016. Perhaps more than some of his liberal detractors gave him credit for, Trump, 71, understood the importance of the judiciary to Republicans who were reluctant to support him. “If you really like Donald Trump, that’s great, but if you don’t, you have to vote for me anyway,” he said at a rally in Iowa last July. “You know why? Supreme Court judges, Supreme Court judges.”
As a candidate, Trump relied on suggestions from two establishment conservative groups, the Heritage Foundation and the Federalist Society, to assemble a list of 21 potential high court picks. Gorsuch was on their list. Now Trump is pulling from the same compilation for his lower-court choices. One example is Allison Eid, whom Trump has nominated for the vacancy created by Gorsuch’s departure from the U.S. Court of Appeals for the Tenth Circuit in Denver. A member of the Colorado Supreme Court, Eid previously served as the state’s solicitor general and as a law clerk to the U.S. Supreme Court’s right-wing elder, Justice Clarence Thomas.
Conservatives applauded Eid’s selection in June, as well as those of 10 other lawyers, judges and scholars. “It’s a fantastic list,” Carrie Severino, chief counsel of the right-leaning Judicial Crisis Network, said in a post on the National Review’s Bench Memos blog. “Many of the nominees are well known in the conservative legal movement.” Trump so far has nominated 15 people to the lower courts, including Stephanos Bibas, a law professor at the University of Pennsylvania who clerked for the Supreme Court’s swing vote, Anthony Kennedy, and has argued several cases before the justices. Bibas is up for a seat on the U.S. Court of Appeals for the Third Circuit in Philadelphia. Professor Amy Coney Barrett of the University of Notre Dame, who previously clerked for Scalia, was nominated for a seat on the the Seventh Circuit in Chicago.
Administration officials “know what they are looking for,” said Jonathan Adler, a conservative constitutional law professor at Case Western Reserve University in Cleveland. “Most of the appellate court nominees are current or former academics. That shows a desire for judges who will have an intellectual influence on the courts they’re placed on.” Noah Feldman, a liberal professor at Harvard Law School and Bloomberg View columnist, volunteered that “these are better picks than one might have expected—maybe better than one could have hoped.” Feldman attributed the quality of these early nominees to the administration’s having “outsourced judicial selection” to “elite conservative lawyers.”
Under Senate rules, confirming judicial nominations requires only a simple majority. That means Republicans need sway all but one of their 52-member caucus to push through a nominee, and even with just 50, they can count on Vice President Mike Pence as a tie-breaker. It used to be that a Supreme Court nominee required 60 votes, but to guarantee Gorsuch’s ascension to what many Democrats bitterly considered Garland’s seat, McConnell exercised the so-called nuclear option, and changed the rule.
In the end, Gorsuch received three Democratic votes and was confirmed 54-45. The only other Trump nominee the Senate has voted on so far, Amul Thapar, a former federal trial judge, took a seat on the Sixth Circuit in Cincinnati after being confirmed 52-44.
Despite Feldman’s muted assessment of Trump’s initial nominees, liberal activists sound glum. “The whole situation is worrisome,” said Nan Aron, president of the Alliance for Justice in Washington. “We’re seeing nominees, including Gorsuch, who are going to turn back the clock on hard-fought rights and liberties.” The prospect of a Trump-shaped federal judiciary “is all the more critical now,” Aron added, “because the courts are the only institution that are providing a check against the administration’s more extreme policies.” As an example, she pointed to the ban on travel from six majority-Muslim countries, which several lower courts blocked before the Supreme Court last month largely reinstated it and agreed to hear arguments on its lawfulness come fall.
The narrow Senate majority currently held by Republicans doesn’t ensure confirmation of every Trump nominee, however. Two White House choices that have infuriated Democrats and could make moderate Republicans queasy are John Bush and Damien Schiff. Both men, who are scheduled for a vote before the Senate Judiciary Committee as soon as next week, have come under fire for hard-right views they’ve expressed as prolific bloggers.
Bush, 52, a Kentucky lawyer nominated to an appellate judgeship on the Sixth Circuit, posted (PDF) pseudonymously in 2008 that slavery and abortion have been “the two greatest tragedies in our country” and added that they stemmed from “similar reasoning and activist justices at the Supreme Court, first in the Dred Scott decision [of 1857], and later in Roe.” By that reasoning, justices such as Anthony Kennedy who have voted to uphold Roe v. Wade, the 1973 abortion-rights landmark, ought to be condemned along with 19th century proponents of slavery. Questioned during a June 14 Judiciary Committee hearing, Bush said that in retrospect he regrets the post equating abortion and slavery and wouldn’t allow his personal views to color his work as a judge.
Schiff, an attorney with the conservative Pacific Legal Foundation, is a nominee for a spot on the U.S. Court of Federal Claims, a specialized body that hears certain lawsuits against the government. In one 2007 post, Schiff assailed Justice Kennedy, a conservative who sometimes sides with the Supreme Court’s liberal bloc. He called the 80-year-old justice a “judicial prostitute” prone to “‘selling’ his vote, as it were, to four other justices in exchange for the high that comes from aggrandizement of power and influence, and the blandishments of the fawning media and legal academy.” At the June 14 hearing, Schiff, 37, apologized for his harsh language and said his point wasn’t “to impugn or malign any person” but to “attack a certain style of judging that is frequently applauded in the media.”
As it happens, rumors have swirled lately in Washington that Kennedy, soon to turn 81, is considering retirement. His potential departure would give Trump another important vacancy to fill. Given Kennedy’s critical role in several 5-4 victories for the liberal wing, it may be the most important of all.