Progressives breathed a sigh of relief recently when Justice Anthony M. Kennedy decided to remain on the Supreme Court for presumably at least one more year. But no matter how long Kennedy stays, a massive transformation is underway in how our fundamental rights are defined by the federal judiciary. For while President Trump is incompetent at countless aspects of his job, he is proving wildly successful in one respect: naming youthful conservative nominees to the federal bench in record-setting numbers.
Trump’s predecessors all slowly ramped up their judicial nominations during their first six months in office. Ronald Reagan named Sandra Day O’Connor to the Supreme Court and made five lower-court nominations in that period; George H.W. Bush made four lower-court nominations; Bill Clinton named Ruth Bader Ginsburg to the high court but no lower-court judges; and George W. Bush named four lower-court judges who were processed by the Senate (plus more than a dozen others sent back to him and later renominated). The most successful early actor, Barack Obama, named Sonia Sotomayor to the Supreme Court and nine lower-court judges who were confirmed.
What about Trump? He not only put Neil M. Gorsuch in the Supreme Court vacancy created by Merrick Garland’s blocked confirmation, but he also selected 27 lower-court judges as of mid-July. Twenty-seven! That’s three times Obama’s total and more than double the totals of Reagan, Bush 41 and Clinton — combined. For the Courts of Appeals — the final authority for 95 percent of federal cases — no president before Trump named more than three judges whose nominations were processed in his first six months; Trump has named nine. Trump is on pace to more than double the number of federal judges nominated by any president in his first year.
Moreover, Trump’s picks are astoundingly young. Obama’s early Court of Appeals nominees averaged age 55; Trump’s nine picks average 48. That means, on average, Trump’s appellate court nominees will sit through nearly two more presidential terms than Obama’s. Many of Trump’s judicial nominees will be deciding the scope of our civil liberties and the shape of civil rights laws in the year 2050 — and beyond.
How conservative are Trump’s picks? Dubbed “polemicists in robes” in a headline on a piece by Slate’s Dahlia Lithwick, Trump’s nominees are strikingly . . . Trumpian. One Trump nominee blogged that Kennedy was a “judicial prostitute” for trying to find a middle ground on the court, and said that he “strongly disagree[d]” with the court’s decision striking down prosecution of gay people under sodomy laws. Another equated the Supreme Court’s decision in Roe v. Wade, upholding a woman’s right to choose to have an abortion, to the court’s 19th-century Dred Scott finding that black people could not be U.S. citizens. Another advocated an Alabama law that denied counsel to death-row inmates.
Progressives who are increasingly counting on the federal courts to be a bulwark against Trump’s initiatives will increasingly find those courts stocked with judges picked by, and in sync with, Trump. With federal judges serving for life, one might think that the process of dramatically changing the makeup of the federal judiciary would take a long time. But given Trump’s unprecedented pace, in just one more year, one-eighth of all cases filed in federal court will be heard by a judge he appointed.
With the abolition of the filibuster, Trump’s nominees need only the votes of Republican senators to win confirmation. Yes, if Kennedy resigns and Trump nominates someone who might overturn Roe v. Wade, pro-choice Republicans could balk; and a few of Trump’s most outrageous lower-court nominations might be unnerving enough to attract GOP opposition. But the reality is that most of Trump’s rapid-fire, right-wing, youthful lower-court nominations are poised to make it to the bench.
What can Democrats do?
First, they need to contest every procedural change the Republicans are making to speed Trump’s nominees. Republican leaders are threatening to curtail “blue slip” rights that allow senators to block unacceptable home-state nominees; Trump is nominating candidates before they are reviewed by the American Bar Association; Judiciary Committee Republicans are arguing that nominees’ writings, legal representations and public statements are irrelevant to confirmation. Democrats should oppose these changes in the process — and, if they lose these fights, insist that any new laxity should apply when a future Democratic president sends nominees to the Senate.
Second, Democrats need to overcome their historic unease about working closely with progressive legal groups. The pace and conservatism of Trump’s judicial nominees reflect his close alliance with a conservative group, the Federalist Society. But in the past, Democrats in the White House and on Capitol Hill have been reluctant to form a similar alliance with the Federalist Society’s progressive counterpart, the American Constitution Society, to identify potential judicial nominees. (Disclosure: I have long been active in the ACS.) When the Democrats regain control over the nomination or confirmation process, they need to be as enthusiastic about working with the ACS and other progressive groups as Republicans have been about their alliance with the Federalist Society.
And finally, nothing is more important than taking back the Senate in 2018. The only thing that can stop the Trump train of judicial transformation is a Senate Judiciary Committee in Democratic hands. Absent that, the next two generations of Americans will live under laws interpreted by hundreds of judges picked by the president with the greatest disdain for the rule of law in our history.