President Trump has retained support from many Republicans and conservatives thanks to a Faustian bargain: So long as he stacks the judiciary with friendly judges, they’ll look the other way when he pushes trade protectionism, ditches entitlement reform or woos Russian President Vladimir Putin — positions out of step with recent conservative orthodoxy.
Former George W. Bush administration lawyer John Yoo said that he had deeply conservative friends “who would normally be utterly turned off by a guy like Trump,” yet supported him “only because of [the] appointment to Justice [Antonin] Scalia’s vacancy” on the Supreme Court. Conservative fixation with judges goes beyond the Supreme Court, including the lower courts as well. Noting that the Supreme Court hears a tiny fraction of the cases decided by appellate judges, Washington Post contributing columnist Hugh Hewitt challenged Trump’s conservative critics to “reconcile their vehement opposition to him with their love of the Constitution.” As David Harsanyi argued for the Federalist, “The question was,” for conservatives, “ ‘What’s scarier, a Trump presidency or a progressive Supreme Court?’ ”
Conservatives may have felt that the bargain paid off late last month, when Trump clinched his 200th judicial confirmation faster than any president since Jimmy Carter. Sen. John Barrasso (R-Wyo.) tried to spike the ball when he said that the milestone marked “a sea change, a generational change on the federal bench” — and that “Republicans are stemming this liberal judicial tide that we’ve lived with in the past.”
But a closer look at the numbers shows that Trump’s judicial record is less a sea change and more the routine ebb and flow from president to president. If Democrats take both the White House and the Senate in November, as current poll numbers suggest they might, then much of Trump’s judicial legacy probably will be soaked by a wave of Democratically appointed judges. That may leave conservatives wondering for what, exactly, did they sell their ideological souls.
Of Trump’s 200 judges, 198 are on lower courts: 143 district-level judges, two international trade judges and 53 appellate-level judges. An additional 44 lower-court nominees are in the pipeline, though there’s no guarantee all will get confirmed. But for the sake of comparisons, let’s assume Trump’s tally ends up at 242 lower-court judges.
That would not give Trump’s judges dominance in the federal judiciary, as there are 851 Article III lower-court seats in all. Topping out at 242 seats would give Trump about 28 percent of the lower-court judiciary (currently he’s at 23 percent). That may be impressive for a single term, but if a single term is all Trump gets, he will nevertheless be outdone on judicial confirmations by his immediate predecessors: Barack Obama got 327 lower-court judges, George W. Bush 326 and Bill Clinton 376.
Trump got to 200 judges faster than any president since Carter, but that fact should make you pause. The last one-term Democratic president and his 259 lower-court judges did not transform the judiciary for a generation. They were quickly met with 379 lower-court judges picked by Republican Ronald Reagan. As of today, if Trump has only one term, he is more likely to replicate Carter’s result, not Reagan’s.
Trump has had particular success in confirming appellate, or circuit, court judges, who are especially prized because many cases don’t go beyond the appellate level to the Supreme Court. His right-hand man in the quest for the judiciary, Senate Majority Leader Mitch McConnell (R-Ky.), boasted that the 200th confirmation meant “there will not be a single circuit court vacancy anywhere in the nation for the first time in at least 40 years.” It was McConnell’s relentless obstruction that prevented Obama from filling some of those vacancies, but Democrats shouldn’t indulge their tears: Obama still secured two more appellate-level judges than Trump.
Trump was able to move faster in his first term than most of his predecessors because the rules changed. Democrats in Obama’s second term, fed up with GOP obstruction, eliminated the filibuster for lower-court judges. Senate Republicans under Trump followed suit for Supreme Court justices and have repeatedly guffawed at how Democrats made Trump’s job so much easier.
But the loss of the judicial filibuster greases the procedural wheels for whichever party simultaneously holds the presidency and the Senate. The Democrats may well get their turn starting in January. Among the appellate court judges, 77 will be 65 years old by the end of this year. Most of these older judges will be eligible to move to “senior” status, in which a judge takes on a reduced workload while creating a full-time vacancy. The routine churn of judicial vacancies will not end with the Trump presidency.
What about the Supreme Court? Trump pitched his plans here openly in 2016, releasing a list of conservative judges from which he promised to draw for high-court vacancies and declaring at a campaign rally: “If you really like Donald Trump, that’s great, but if you don’t, you have to vote for me anyway. You know why? Supreme Court judges.”
Trump’s first pick, Neil Gorsuch, eventually succeeded Scalia, whose seat McConnell kept open by blocking Obama’s nominee. Then, when Justice Anthony M. Kennedy stepped down, the president took what had been a swing seat and made it more conservative by filling it with Brett M. Kavanaugh. Weren’t those Supreme Court picks worth the ideological price that conservatives paid by supporting Trump?
Well, this supposedly die-hard conservative Supreme Court has blocked Trump from canceling Obama’s Deferred Action for Childhood Arrivals (DACA) policy, thwarted Trump’s effort to put a citizenship question in the census, sided against the administration’s attempt to gut the Clean Water Act, made it easier for consumers to pursue antitrust claims against major corporations and expanded the workplace rights of transgender employees. On Monday, the court refused to let states weaken Roe v. Wade with debilitating restrictions on abortion clinics. In some of these cases, a Trump appointee joined the court’s liberals in the majority. Gorsuch himself wrote the transgender rights decision.
This has rattled social conservatives. “You cannot trust in these institutions at all anymore nor can you vote in enough people to stop a cultural shift in directions you might not want to go,” lamented pundit Erick Erickson.
Erickson is correct. Conservatives shouldn’t bank on the federal judiciary to do what they want all the time. The Supreme Court was designed by America’s founders to elude partisan and ideological capture, as Alexander Hamilton outlined in Federalist No. 78. Conservatives have struggled with accepting this constitutional reality after Kennedy, a Reagan appointee, wrote the majority opinion in Obergefell v. Hodges, guaranteeing the right to same-sex marriage; after Justice David Souter, a George H.W. Bush appointee, became a reliably liberal justice in a wide range of cases; and after Chief Justice John G. Roberts Jr., a George W. Bush appointee, upheld the legality of Obamacare and eventually became a swing vote. Perhaps the Gorsuch opinion will help the lesson finally sink in.
Of course, conservative judges will still rule conservatively most of the time. Liberals will forever scorn the Roberts court for invalidating campaign finance reforms, narrowing the scope of the Voting Rights Act and making it harder for unions to organize.
Nevertheless, recent rulings, along with the record of almost a half-century of lower-court judicial appointments, clearly weaken the logic of sacrificing seemingly bedrock conservative principles in pursuit of a rigidly ideological judiciary. The paradoxical combination of lifetime judicial appointments and perennially shifting political winds makes it difficult for one faction to place a permanent hammerlock on our courts. There are structural limits to those “sea changes.”
In the battle for the judiciary, the war is never ultimately won. Consider that in 1987, Democrats blocked Judge Robert Bork’s Supreme Court nomination, which helped put the less-doctrinaire Kennedy on the court — only to see conservative stalwart Clarence Thomas replace liberal icon Justice Thurgood Marshall a few years later. The anger over Thomas’s confirmation contributed to Democratic victories in 1992, paving the way for Justice Ruth Bader Ginsburg to replace a dissenter to Roe, Justice Byron White.
If Democrats win big in 2020, they will again get their turn at shaping the judiciary, and Republicans will have to ask if they paid too steep a price.
This story has been updated.