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McCarthy writes: "Many Americans watching the turmoil in US institutions and political norms are yearning for the day when Donald Trump is no longer president. But whether he leaves after 2020 or 2024, Trump has built a legacy in one vital area that can be expected to stand for decades, long after his Twitter feed has fallen silent, analysts across the political spectrum agree."

Brett Kavanaugh. (photo: Andrew Harnik/Getty Images)
Brett Kavanaugh. (photo: Andrew Harnik/Getty Images)

Trump's Legacy: Conservative Judges Who Will Interpret US Law for Decades

By Tom McCarthy, Guardian UK

10 March 19

Republicans have confirmed 89 Trump-nominated judges, far in excess of appointments under Obama and Bush

any Americans watching the turmoil in US institutions and political norms are yearning for the day when Donald Trump is no longer president. But whether he leaves after 2020 or 2024, Trump has built a legacy in one vital area that can be expected to stand for decades, long after his Twitter feed has fallen silent, analysts across the political spectrum agree.

That legacy comprises the 89 judges, and rapidly counting, that Trump has nominated, and Senate Republicans have confirmed, to serve at all levels of the federal court system. They are taking up posts from the district courts (53 Trump nominees confirmed out of 677 total) to the appellate courts (34 out of 179) to the US supreme court (two out of nine). Put together they form a kind of conservative judicial revolution that could impact all aspects of American life.

In the past week, Trump’s judges tally notched up by three, with the confirmation to appeals courts of Chad Readler, who previously ran the legal effort to dismantle Barack Obama’s healthcare law; Eric Murphy, who undermined voting rights, marriage equality and reproductive rights as a state solicitor in Ohio; and Allison Jones Rushing, who has past ties to an anti-LGBT group and who at 37 years old is the country’s youngest federal judge, a lifetime appointment.

As with previous Trump nominees, Readler, Murphy and Rushing were confirmed over the impassioned protests of progressive groups who warned the judges were out of step with the country on crucial issues including immigration, abortion, climate change, LGBT rights, healthcare, voting rights and more.

The overarching concern, said Daniel L Goldberg, the legal director at the Alliance For Justice, is that Trump’s judges will now shape American life according to the narrow conservative vision of the elite, predominantly white and male groups guiding Trump’s hand as he makes his picks – a vision that is divergent not only from the political left but also from the center.

“I don’t think most Americans realize, long after Donald Trump and his repeated attacks on the rule of law – on the independent judiciary and our constitutional rights – long after Donald Trump has left the scene, his judges will still be interpreting the constitution and our laws for the next two, three, four decades,” Goldberg said.

“And for millions of Americans, who rely every day on critical protections for workers, for clean air and water, for healthcare, for critical rights for women and LGBTQ Americans, there’s going to be an attack coming from our courts on some of our most precious rights and legal protections.”

The Trump judge-confirming machine has arguably been run better than anything else in his administration – perhaps because he has had relatively little to do with it. Unlike past presidents, Trump has turned the job of picking nominees over, almost wholly, to the White House counsel’s office, which in turn has worked from lists drawn up by the Federalist Society, the country’s premier network of conservative lawyers.

The Republican Senate majority leader, Mitch McConnell, has done his part by clearing long-standing hurdles in the nominating process, including one by which home-state senators from either party could veto an undesirable pick. On Wednesday, Politico reported that McConnell planned to go further, by ending a rule requiring 30 hours of debate on each judicial nominee.

“This is a Republican hijacking of the third branch of government,” said Brian Fallon, the executive director of Demand Justice, in reaction to the news. “[McConnell] will be setting a new precedent that it is OK to change the Senate rules in order to get more of your preferred judges onto the federal bench.”

Republicans would argue that Democrats changed the rules first. In any case, the current state of play has worked well for Trump, who has succeeded in confirming 24 judges to appellate courts during the first two years of his term, about 50% more than Obama (15) and George W Bush (16), and a third more than Bill Clinton (18), George HW Bush (18) and Ronald Reagan (19).

“The nomination of judges has been one of the few bright spots of the Trump administration by a long shot,” said Josh Blackman, a professor at the South Texas College of Law specializing in the supreme court and constitutional law.

While Trump’s supreme court picks, Brett Kavanaugh and Neil Gorsuch, have received a lion’s share of the public’s attention, his appeals and district court picks could have more influence over the life of the nation, because of the relatively limited number of cases the US supreme court hears.

“The appeals courts are crucially important, because every year they resolve 50,000 or so cases, and the supreme court decides fewer than 100,” said Carl Tobias, a professor at Richmond School of Law specializing in federal judicial selection. “And so for 99.9% of cases, the court of last resort is the appeals court in your region, and so it really is critically important.”

Blackman said “conservatives are by and large happy” with Trump’s judicial picks.

“The Kavanaugh and Gorsuch nominations are sort of the icing on the cake,” Blackman said. “But I think the real action is in the lower courts, which most people don’t even know about.”

The power of federal judges in American life is tremendous – and has also worked in favor of progressive ideals. In rulings cheered by progressives since the 2016 election, judges have ordered families separated by the Trump administration at the border to be reunited; blocked the Keystone XL pipeline on environmental grounds; vacated an executive order to weaken federal unions; blocked Trump’s effort to add a citizenship question to the 2020 census; upheld a Trump ban on bump stocks for semi-automatic rifles; and sentenced former Trump aides including Michael Cohen and Paul Manafort to prison.

But federal judges have not always been antagonistic to the president. In the past year, the supreme court has allowed Trump’s ban on transgender troops in the military to stand, upheld a revised Muslim travel ban, complicated abortion access in California and approved a Republican-led voter purge in Ohio that disproportionately targeted racial minorities, among other measures.

But so questionable has been the quality of some of Trump’s nominees that even Republicans have taken pause. On Wednesday, Senator Susan Collins of Maine voted against Readler, saying that his attack on Obamacare amounted to an attempt to deny health insurance to those with pre-existing conditions. Republican senator Tim Scott opposed the nomination of Thomas Farr, who defended a North Carolina voter ID law that a federal appeals court said was enacted “with racially discriminatory intent”, and of Ryan Bounds, who wrote controversial undergraduate newspaper columns at Stanford University including one comparing campus diversity efforts to Nazi Germany.

Trump’s nomination of Matthew Spencer Petersen, a federal elections commissioner who had never tried a case, fell apart embarrassingly at Peterson’s confirmation hearing when he could not answer basic legal questions. Trump’s nomination of Texas lawyer Jeff Mateer fell apart when it emerged that Mateer had endorsed “conversion therapy” for LGBT individuals and called transgender children proof that “Satan’s plan is working”.

Despite those stumbles, Trump has succeeded in placing enough judges to begin to shift the ideological makeup of the judiciary, including on two appellate courts. Under Trump, the 11th circuit (Alabama, Georgia and Florida) has gone from a Democratic majority to a 6-6 split, and the 3rd circuit (Pennsylvania, New Jersey and Delaware) went from a 7-5 Democratic majority with two vacancies to what is likely to be a 7-7 split.

On the question of how the courts might be changing, Tobias said “we just don’t have that much data yet.”

“The longest anybody’s been on the bench is two years, and most of them much less time than that, so it’s really hard to draw conclusions, but they will begin to make a difference I think in the coming years, that’s for sure,” he said.

As for long-term change, Tobias noted that in short order, Trump most likely will have filled every vacancy among the 179 active circuit court judges.

“Trump is not going to have a lot more nominees at that level unless he is reelected,” Tobias said. “I think it depends on whether Trump has a second term.”

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