How Trump is Quietly Shaping the Federal Judiciary for Decades to Come

By Owen Voutsinas-Klose
Owen Voutsinas-Klose is a freshman at the University of Pennsylvania

President Trump’s successful nomination of Justice Neil Gorsuch to the Supreme Court is considered by pundits to be a great accomplishment within/for  an otherwise tumultuous Presidency. Trump’s appointments made to district and circuit courts have the potential to fundamentally shape the federal judiciary for decades to come by reorienting these critical courts (which are the final arbiter for more than 98% of cases) towards a more conservative tilt.
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 Trump has been criticized for his slow pace in nominating key administrative posts, but his administration has been uncharacteristically diligent when it comes to selecting judges, with his pace of judicial nominations exceeding that of President Obama’s. [1]  In his first 200 days in office, Trump has nominated 44 judges, including 11 to circuit courts and 23 to district courts.  In the same period of time, President Obama had only nominated five appeals judges and four district judges, despite having a larger Senate majority.  Jeffrey Toobin, a legal writer for the New Yorker and a CNN analyst, attributes this disparity to the emphasis conservatives place on judicial appointments.  He writes “Trump has also benefitted from the greater interest that conservatives, as compared with liberals, have shown in federal judicial appointments at all levels. Republicans simply care more than Democrats do about getting their people onto the bench.” [2].  

Trump has more of an opportunity to remake the federal judiciary than other presidents have had in large part due to the blockade by Majority Leader Mitch McConnell of judicial confirmations during the last two years of President Obama’s term.  This, coupled with a growing number of older judges, has allowed Trump to start his term with more vacancies than any president of the modern era with the exception of Bill Clinton (see chart).  As of November 10th, 2017, over 18 vacancies remain on the Circuit Courts, with only 8 nominees pending.  The situation on District Courts is even more pronounced, with 119 vacancies (over one fifth of the judiciary), and pending nominees for 36 positions. [3]  

One of the few tools Democrats have to block this onslaught of conservative jurists, who have the potential to shape issues from immigration to gun rights, is a Senate procedure known as the “blue slip process.” Since 2013, when Democrats invoked the “nuclear option” to scrap the filibuster for judicial nominees, the blue slip deference has been the last remaining tool of the minority to block judicial picks. If a Senator approves of a nominee, he or she signifies their approval by returning a “blue slip” to the Senate Judiciary Committee.  The Senate Judiciary Chair will not schedule confirmation hearings until both a state’s senators have returned their blue slip.  As Democrats have delayed hearings on Judges, Senate Majority Leader Mitch McConnell (R-KY) has stated that he hopes to make blue slips “strictly advisory” for Circuit Court nominees (appointed to courts whose jurisdiction spans multiple states).  This removes Democrats of one of their only means of stopping Judicial appointments to the critically important circuit courts.

Source: the New York Times https://www.nytimes.com/interactive/2017/02/14/upshot/trump-poised-to-transform-american-courts.html

What happens when the minority loses the power to check judicial nominees?  While the vast majority of Trump nominees have long legal pedigrees and “qualified” or “well qualified” ratings from the American Bar Association (ABA) (as opposed to “not qualified”), picks including John Kenneth Bush (to the 6th Circuit Court of Appeals) have drawn scrutiny due to past controversial statements, including blog posts promoting conservative conspiracy theories about former President Obama’s birthplace and for writing in a blog post that “slavery and abortion” are the “two greatest tragedies” to affect our country.  Judge Bush was confirmed to a lifetime appointment 51-47, despite bipartisan concerns.  Leonard Steven Grasz, a nominee to the Eighth Circuit Court of Appeals, received a “not qualified” rating from the ABA due to “temperament issues, particularly bias and lack of open-mindedness” that the ABA called “very problematic.”  Mr. Grasz supports conversion therapy for LGBT youth and has cast doubt on the theory of evolution, calling into question his ability to fairly arbiter cases.  District Court nominee Jeff Mateer has described transgender children as part of “satan’s plan”, and nominee Mark Norris has “led efforts to prohibit communities from removing Confederate monuments in public places.” [5].

The sheer number of judicial appointments being made by Trump will be his “most important legacy,” according to Senator Chris Coons (D-DE), yet this critical issue and the appointment of extreme jurists suffers from a lack of public attention.  The decisions of Trump’s judges will have impacts for generations to come, and these judges’ selections demands closer public scrutiny.  

[1] Warren, James. "Donald Trump Is Rapidly Reshaping the Nation's Courts." Vanity Fair. August 04, 2017. Accessed November 10, 2017. https://www.vanityfair.com/news/2017/08/donald-trump-is-rapidly-reshaping-the-nations-courts.
[2] Toobin, Jeffrey. "Trump's Real Personnel Victory: More Conservative Judges." The New Yorker. August 02, 2017. Accessed November 10, 2017. https://www.newyorker.com/news/daily-comment/trumps-real-personnel-victory-more-conservative-judges.
[3] "Judicial Vacancies." United States Courts. Accessed November 10, 2017. http://www.uscourts.gov/judges-judgeships/judicial-vacancies.
[4] Stern, Mark Joseph. "The Senate Just Confirmed an Anti-Gay Blogger to the Federal Judiciary." Slate Magazine. July 20, 2017. Accessed November 10, 2017. http://www.slate.com/blogs/outward/2017/07/20/senate_confirms_john_k_bush_anti_gay_blogger_to_the_6th_circuit.html.
[5] Scheindlin, Shira A. "Trump’s Crazy Choices for the Courts." The New York Times. November 09, 2017. Accessed November 10, 2017. https://www.nytimes.com/2017/11/09/opinion/trump-judges-courts.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region®ion=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region.
Photo Credit: Flickr User/The White House www.flickr.com/photos/whitehouse/

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