Relying on the Judiciary as the Backbone of the Resistance? Not for Long.

Democrats are counting down the days until President Trump moves out of the White House, and hope that with a new president’s arrival, America will have seen the last of his policies and principles. But President Trump, with the impetus of the GOP establishment, is steadily ensuring his legacy will be securely protected once he leaves office. As of January 16th, Trump has nominated, and the Senate has confirmed, 187 new judges for positions in the nation’s highest courts. This large cohort, made possible by Senate Majority Leader Mitch McConnell (R-KY), includes numerous judges that hold extreme conservative views and/or lack necessary qualifications. Despite the confirmation process becoming vastly more contentious, Republicans have succeeded in shifting the ideological leaning of the judicial branch even more to the right for decades to come.

Trump’s 187 confirmations have included two the Supreme Court and 50 to the US Court of Appeals. While the former was certainly were well-publicized, the latter as a whole may be more influential. The Supreme Court only hears about 100 cases a year, compared to the thousands of cases appellate courts decide. In the words of Supreme Court Justice Sonia Sotomayor, “Appellate courts are where the policy is made.”

At this point in each president’s fourth year, Trump has appointed a similar number of judges as Bush Jr and Clinton, while outpacing Obama, Bush Sr, and Reagan. The process of judicial appointments has not stayed consistent through administration, though. Judicial appointments became increasingly politicized during the Obama Administration and continued to be even more contentious during the current Trump Administration. And presiding over this dramatic shift in party polarization has been Senate Republican Leader Mitch McConnell. 

We can see this shift when looking at the rates of cloture votes, roll call votes, and judges confirmed with more than 25% of Senators in opposition. 47.8% of President Trump’s confirmations have been had more than 25% of Senators voting against, a huge increase from the 8.6, 3.8, and 1.3 rates of Presidents Obama, Bush, and Clinton, respectively. Even more telling is the rate of cloture votes. The Senate must end debate on a nomination before voting on whether to approve it, and cloture votes are formal ways to end debate if Senators object to ending debate informally. 73.3% of Trump’s nominees have been subject to cloture votes, while the previous five presidents never eclipsed a 3% rate. 

Not only are the judges consistent in their ideology, but also identity. Three years into his term, President Trump has not nominated a single African-American or Latinx to the appellate courts. In all, 77% of Trump’s judicial appointees are men, and 80% are white, compared to President Obama’s 58% and 63% rates, respectively. This lack of diversity on the nation’s guardian of civil liberties further strengthens institutional roadblocks for historically underrepresented classes. Furthermore, these judges skew young–their average age is less than 50–which means they will serve for decades as their positions have no term limits. 

How has Trump succeeded in confirming so many extreme judges, despite record levels of opposition among Senators? The difference between this trend and other Trump administration goals that haven’t panned out (i.e., health care) is that the Republican establishment has made judicial confirmations priority number one. In the Mitch McConnell-run Senate, hundreds of bills passed by the House have been ignored in favor of confirmation hearings and votes. 

The moment Republicans took control of the Senate in 2014, they essentially blocked almost all of Obama’s judicial nominations. This allowed Trump to enter office with a historically high number of district and circuit court vacancies (and even a Supreme Court vacancy). Trump entered with 108 vacancies, compared with Obama’s 54 and Bush’s 84. When Trump assumed the Presidency, Republicans began to exploit the confirmation process to limit the power of the minority party. 

Besides abolishing the filibuster for Supreme Court nominations, Republicans also began weakening the power of “blue slips.” This informal Senate tradition allows the judicial nominee’s two senators to register their disapproval of the nomination. By withholding their blue slip, Senators (including Republicans in the minority) in the Obama Presidency had the extraordinary power to block nominees. A single senator of either party could veto any nominee to a federal judgeship in their state. This tradition has been consistently weakened during Trump’s tenure and allows Republicans to consolidate their power even more and shut out Democrats from the confirmation process. 

The blistering pace of confirmations has led the White House to sometimes nominate candidates with little experience or intolerant views. The American Bar Association (ABA), the accrediting body for US law schools, has rated at least 10 of President Trump’s nominees “Not Qualified.” In contrast,  not a single one of President Obama’s 386 nominees was given that designation. Four of those nominees were unanimously rated not qualified, meaning all 15 members of the rating committee felt the nominee did not meet the committee’s standards. Five of the nine nominees have been confirmed, while two have their nomination pending. 

One reason Trump’s judicial nominees have been especially conservative is due to the Democrats’ decision in 2013 to eliminate the filibuster for non-Supreme Court judges. After this decision, only a simple majority of Senators are needed to confirm judges, rather than 60 votes. This means less incentive for nominated judges to be moderates as they have less to fear from the opposition party. As a result, judges have begun to essentially “audition” to their desired party for a nomination.  The nomination of now-Supreme Court Justice Neil Gorsuch is one such example. 

First, an aside is required on who decides on which judges are nominated. In the Trump administration, nominations have been outsourced to The Federalist Society, a legal group that counts the nation’s leading conservative lawyers as members. During the 2016 campaign, Trump said this explicitly during a radio interview. “We’re going to have great judges, conservative, all picked by the Federalist Society,” he told the right-wing site, Breitbart. By allowing the Federalist society to put forth their preferred choices, there is an incentive for judges to align their views with the views of the Federalist Society. 

As the Obama presidency was drawing to a close, the Federalist Society began focusing on limiting the regulatory power of federal agencies in order to hobble agencies like the EPA, SEC, and HHS that were empowered during the Obama administration. Indeed, the panels during Society’s 2015 Convention were largely focused on deregulation. Gorsuch, taking note of this tone, wrote various opinions in that period that laid out the limits he hoped to impose on federal agencies. One month before his name appeared on a list of potential Trump nominees to succeed Scalia, Gorsuch wrote a lower-court opinion espousing his opposition to the “Chevron deference,” a Supreme Court precedent that allows federal agencies to create their own regulations past Congress. This opinion was written separately in concurrence to his own majority opinion, a way to call attention to himself. 

This is just one example of how eliminating the filibuster has fundamentally changed the nomination process. Without having to placate a number of minority party senators, judges are free to move to the ideological extremes and “audition” for roles by trying to catch the eye of the Federalist Society and others. 

Ultimately, judicial nominations have become more contentious because of a mix of McConnell’s tactics. These include outsourcing nominations to Federalist society, opposing Obama’s nominees, using/changing Senate rules, and nominating extreme judges (both identity & ideology). Republicans are winning the game by making it a street fight, and at the end of the day, it comes down to the elections. Control of the Senate and the Presidency are the only two institutions that have a say in judicial nominations, and right now, Republicans have control of both. But don’t expect nominations to become less contentious if Democrats take control of one of those institutions, control of both is needed. 

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