Examining Donald Trump’s Effect on the Federal Judiciary

By Nicholas Williams
Nicholas Williams is a sophomore in the College of Arts & Sciences from Los Angeles, California who is majoring in History.​

Now that Donald J. Trump has exited the Oval Office, the full extent of one of his most lasting legacies is clearer: his judicial appointments. In addition to his appointment of three Supreme Court justices, Trump also appointed hundreds of lower-court judges. These judges will continue to sit on the federal bench for decades, far outlasting Trump’s tenure in office. 

​The president has the power to appoint federal judges with the “advice and consent” of the Senate [1]. In the United States, there are three basic levels of the federal court system: federal district courts, federal appellate courts (also known as circuit courts), and the Supreme Court. While there are some other federal judgeships, such as Article I judgeships and judgeships for the Court of International Trade [2], this article will focus on judges that sit on federal district courts, appellate courts, and the Supreme Court. Federal courts have power over cases involving federal laws and the U.S. Constitution, making federal courts the primary venue for major questions of constitutional interpretation [3]. 
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Overall, Trump appointed 174 district court judges, 54 circuit court judges, and three Supreme Court justices, for a total of 226 judges (judges that were appointed by Trump to multiple judgeships are only counted once) [4]. These judges all received lifetime appointments, making Trump’s effect on the judiciary even more profound. In comparison, Barack Obama appointed 320 judges, including two Supreme Court justices, over a span of eight years. In Obama’s first term, the Senate confirmed only 175 judges [5]. While Obama appointed more judges overall than Trump, Trump had only half as many years to appoint, and Trump also eclipsed Obama in successful Supreme Court appointments. 

Over a quarter of the federal judiciary now consists of judges appointed by Trump, including a third of the Supreme Court. Trump has also “‘flipped’” three appellate courts: the Courts of Appeals for the 2nd, 3rd, and 11th circuits [6]. Before he took office, Democratic appointees constituted a majority of these courts; now, Republican appointees constitute a majority.

What is probably the most significant part of Trump’s judicial legacy is his appointment of three justices to the Supreme Court. The last president to have three successful Supreme Court appointments was Ronald Reagan, and Trump was able to appoint three justices in a single term. Trump appointed Neil M. Gorsuch in April 2017 to succeed the late Justice Antonin Scalia [7], Brett M. Kavanaugh in October 2018 to succeed the retired Justice Anthony Kennedy [8], and Amy Coney Barrett in October 2020 to succeed the late Justice Ruth Bader Ginsburg [9].

Trump’s appointments of Gorsuch, Kavanaugh, and Barrett are seen by many as a shift to the right for the Supreme Court. Some have even said that the Supreme Court is now the most conservative it has been since the 1930s [10]. Already, Trump’s appointees have provided decisive votes in close cases of constitutional importance.

For example, in Roman Catholic Diocese of Brooklyn, New York v. Cuomo (2020), five justices, including all three of Trump’s appointees, ruled that an executive order issued by New York Governor Andrew Cuomo limiting attendance at in-person houses of worship in response to the COVID-19 pandemic was an unconstitutional violation of the Free Exercise Clause of the First Amendment to Constitution [11]. The ruling came over the objection of four justices, including Chief Justice John Roberts. It is likely that this case would have had a different outcome had the liberal Justice Ginsburg still been on the Court instead of Justice Barrett.

In another close case, Rucho v. Common Cause (2019), the Supreme Court ruled by a vote of 5-4 that claims of partisan gerrymandering were nonjusticiable in federal courts [12]. The majority stated that partisan gerrymandering was a political question that federal courts could not consider. The ruling came before Barrett’s appointment to the Supreme Court, but Gorsuch and Kavanaugh provided decisive votes for the majority. Barrett’s jurisprudence will become more apparent later this year as decisions are released, including a case regarding the constitutionality of the Affordable Care Act, also known as Obamacare [13].

Furthermore, the Senate changed various procedures regarding the judicial confirmation process during Trump’s tenure in office. Most notably, after Trump’s nomination of Gorsuch to the Supreme Court in 2017, Republicans in the Senate invoked the so-called “nuclear option” to change the number of senators required to end a filibuster of a nominee for the Supreme Court from 60 to 51 [14]. This change ensured that Gorsuch would be confirmed, which he eventually was. Other changes to the judicial confirmation process were also made, such as lowering the amount of debate time required after invoking cloture for district court judges [15], as well as doing away with the informal requirement that nominees for circuit court judgeships are approved of by the senators from the state in which they will sit [16]. 

President Joe Biden inherited fewer judicial openings than Trump did [17], but he will have opportunities to reshape the federal courts. While there are no current Supreme Court openings, there are rumors that Justice Stephen Breyer, who is the Supreme Court’s oldest member at 82 years old, may retire to allow Biden to nominate a more liberal justice [18]. However, this would not alter the ideological balance of the court, as Breyer is considered a liberal justice himself. Biden is also creating a commission to study possible reforms to the Supreme Court amid calls by many on the left to expand the size of the Supreme Court, a practice commonly referred to as “Court packing [19].”

​Overall, Trump had a significant impact on the federal judiciary that will last for decades. The federal courts have shifted to the right, but the extent of this shift is not yet clear. Upcoming Supreme Court decisions will help shed light on the future of the Supreme Court with three Trump appointees.

[1] U.S. Constitution, art. 2, sec. 2, cl. 2.
[2] “ORGANIZATION OF COURTS, TENURE, AND COMPENSATION OF JUDGES.” Cornell Law Institute. Accessed February 24, 2021. https://www.law.cornell.edu/constitution-conan/article-3/section-1/organization-of-courts-tenure-and-compensation-of-judges
[1] “Federal Courts & the Public.” United States Courts. Accessed February 20, 2021. https://www.uscourts.gov/about-federal-courts/federal-courts-public#:~:text=Court%20Cases,U.S.%20government%20and%20foreign%20governments.
[2] Gramlich, John. “How Trump compares with other recent presidents in appointing federal judges.” Pew Research. Accessed February 20, 2021. https://www.pewresearch.org/fact-tank/2021/01/13/how-trump-compares-with-other-recent-presidents-in-appointing-federal-judges/.
[3] Savage, David G.. “Obama struggles to nominate, confirm federal judges.” Los Angeles Times. Accessed February 20, 2021. https://www.latimes.com/politics/la-xpm-2013-jan-05-la-na-obama-judges-20130106-story.html.
[4] Hurley, Lawrence. “On guns, abortion and voting rights, Trump leaves lasting mark on U.S. judiciary.” Reuters. Accessed February 20, 2021. https://www.reuters.com/article/us-usa-trump-judges/on-guns-abortion-and-voting-rights-trump-leaves-lasting-mark-on-u-s-judiciary-idUSKBN29K162?il=0.
[5] Caldwell, Leigh Ann. “Neil Gorsuch Confirmed to Supreme Court After Senate Uses 'Nuclear Option.'” NBC News. Accessed February 20, 2021. https://www.nbcnews.com/politics/congress/neil-gorsuch-confirmed-supreme-court-after-senate-uses-nuclear-option-n743766.
[6] Peterson, Kristina and Natalie Andrews. “Senate Votes to Confirm Kavanaugh to Supreme Court.” The Wall Street Journal. Accessed February 20, 2021. https://www.wsj.com/articles/senate-poised-to-confirm-kavanaugh-for-supreme-court-1538834976.
[7] Wise, Lindsay and Jess Bravin. “Amy Coney Barrett Sworn In as Supreme Court Justice.” The Wall Street Journal. Accessed February 20, 2021. https://www.wsj.com/articles/amy-coney-barrett-set-to-be-confirmed-as-supreme-court-justice-11603721947.
[8] Biskupic, John. “The Supreme Court hasn't been this conservative since the 1930s.” CNN. Accessed February 20, 2021. https://www.cnn.com/2020/09/26/politics/supreme-court-conservative/index.html.
[9]  “Roman Catholic Diocese of Brooklyn, New York v. Cuomo.” SCOTUSblog. Accessed February 20, 2021. https://www.scotusblog.com/case-files/cases/roman-catholic-diocese-of-brooklyn-new-york-v-cuomo/.
[10] “Rucho v. Common Cause.” Oyez. Accessed February 2021. https://www.oyez.org/cases/2018/18-422.
[11] Higgins, Tucker. “Supreme Court appears willing to leave Obamacare in place.” CNBC. Accessed February 20, 2021. https://www.cnbc.com/2020/11/10/supreme-court-appears-willing-to-leave-obamacare-in-place-.html. 
[12] Tay, Bryan and Siobhan Hughes. “Senate Eliminates Filibuster for Supreme Court Nominees.” The Wall Street Journal. Accessed February 20, 2021. https://www.wsj.com/articles/senate-is-expected-to-vote-to-end-supreme-court-filibuster-thursday-1491471004. 
[13] Lowry, Bryan. “Senate GOP goes ‘nuclear’ to limit debate on nominees in change championed by Blunt.” The Kansas City Star. Accessed February 20, 2021.  https://www.kansascity.com/news/politics-government/article228795094.html
[14] Levine, Marianne. “Senate Dems take a page from GOP in judicial nominee battles.” Politico. Accessed February 20, 2021.  politico.com/news/2021/02/17/court-nominees-democrats-469500.
[15] Walsh, Joe. “Biden Enters Office With Fewer Judicial Openings Than Trump.” Forbes. Accessed February 20, 2021.  https://www.forbes.com/sites/joewalsh/2021/01/20/biden-enters-office-with-fewer-judicial-openings-than-trump/?sh=3dd7afed2180 
[16] Hurley, Lawrence. “U.S. Supreme Court's Breyer in retirement spotlight after Democratic wins.” Reuters. Accessed February 20, 2021. https://www.reuters.com/article/us-usa-biden-court/u-s-supreme-courts-breyer-in-retirement-spotlight-after-democratic-wins-idUSKBN29C2S5
[17] Pager, Tyler. “Biden starts staffing a commission on Supreme Court reform.” Politico. Accessed February 20, 2021. Politico. https://www.politico.com/news/2021/01/27/biden-supreme-court-reform-463126

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