Trump Is Remaking the Federal Judiciary at a Historic Rate

Trump Is Remaking the Federal Judiciary at a Historic Rate
(AP Photo/Andrew Harnik)
Trump Is Remaking the Federal Judiciary at a Historic Rate
(AP Photo/Andrew Harnik)
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After weeks of televised hearings, in late December the U.S. House officially impeached President Trump. While those lawmakers were bickering over their trivial vote that is unlikely to remove the president, the Senate was busy accomplishing the more permanent task of confirming Trump’s judicial nominees. It’s a striking contrast of priorities -- and the statistics are staggering -- as Trump is remaking the federal judiciary at a historic rate.

Two weeks ago, Senate Majority Leader Mitch McConnell got 13 federal district court nominations through the Senate, 11 of which were part of a deal to expedite appointments reached with Democrats on Dec. 18. Prior to the deal, McConnell had scheduled procedural votes roughly every two hours, reported CNN.  

Consequently, with 187 total judges confirmed Trump came close to confirming more judges in 2019 than in 2017 and 2018 combined. 

As of late November, the U.S. Court of Appeals for the Eleventh Circuit was the third circuit court to flip from a majority of Democrat appointees to a majority of Republican appointees under President Trump (not counting the many courts that had an even split that have also tipped Republican). In an interview with Hugh Hewitt on Dec. 18, McConnell said, “One of every four of the U.S. circuit judges in the country have been put on the bench in the last three years.”  

This is an astonishing figure when you consider the importance of the federal circuit court.  While the U.S. Supreme Court garners all the headlines, the overwhelming majority of federal court cases never make it there. Because the Supreme Court accepts around 1% of cases, the Court of Appeals — divided into 13 circuit courts — has the final say on matters of the law and Constitution.  

In three years, Trump has appointed 50 judges to the circuit courts. The numbers are impressive when compared to past presidents’ appointments at this time in their presidencies. Barack Obama made 24 appointments to the circuit courts, George W. Bush made 30, Clinton 27, George H.W. Bush 31, and Reagan 23.  

If conservatives of any stripe need a reason to see the silver lining of his presidency, this would be it.  

It matters for the conservative movement that Trump and McConnell — and judiciary Chairmen Lindsey Graham and Chuck Grassley — have prioritized judicial appointments. Trump, according to the White House, has focused on “appointing judges who set aside their personal views and political prejudices to do what the Constitution and the law demand,” a welcome change from activist judges who deviate from the text of the Constitution and law. But most of all, unlike elected positions such as the president or representatives in the legislature, judges hold lifetime appointments. This means that even when a Democrat becomes president, the judges that Trump has appointed will remain and will act as a constitutional check on the executive and the legislative branches until they die or step down. 

For this reason, the Trump administration has been strategic about the age of their judicial appointees, with the average age of Trump-appointed circuit judges under 50 years old (which is 10 years younger than the average age under Obama). According to the White House, judges appointed under Trump are expected to have 2,600 years of judicial service altogether.  

Now that’s a legacy.  

According to a Nov. 26 CNN poll, the impeachment hearings accomplished nothing in terms of changing the minds of Americans. In October, 50% of Americans overall were in favor of impeachment, while 43% were not. As of the week of Nov. 25, after the public impeachment hearings in the House, those polling numbers were exactly the same. While the notion of impeachment is fleeting, Trump’s presidency is also fleeting. His last year will be either 2020 or 2024.  

Judicial appointments, however, will remain for administrations to come. “But there's not much you can do about a young, strict constructionist who's committed for a lifetime to the quaint notion that maybe the job of a judge is to follow the law,” McConnell said at an October Federalist Society event in Kentucky. “My motto for the rest of the year is 'leave no vacancy behind.'”  

So what do they do for an encore? For starters, the liberal-leaning Ninth Circuit Court of Appeals, which handles all appeals for nine Western states, is on the verge of having a majority of Republican-appointed judges, depending on how many seats Trump has the opportunity to fill.  After Trump’s most recent appointment, according to Politico, “Democratic-appointed judges now hold a three-seat majority, compared with 11 at the start of Trump's presidency.”   

It is no surprise that Trump wants to be known for appointing the most judges during his presidential career. "In terms of quality and quantity, we are going to be just about No. 1 by the time we finish,” he said in November. “No. 1 of any president, any administration.”  

If he gets a second term -- and McConnell still controls the Senate -- Trump might just get there.  

Cori Petersen is a writer and research associate at the Wisconsin Institute for Law & Liberty.



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