Reshaping the courts
(Illustration by Krieg Barrie)
Donald Trump and Mitch McConnell have made court appointments a high priority, and their work is showing results
Terrisa Bukovinac barely made it to the hearing in time. After spending the day in Sacramento delivering 19,000 letters to California Gov. Gavin Newsom’s office (the letters opposed an abortion-expansion law), she and her assistant hopped on a Greyhound back to San Francisco.
They hurried into a crowded overflow room in the James L. Browning courthouse and slipped into seats in the back. Bukovinac recognized a gaggle of local pro-abortion supporters and reporters, eyes glued to the TV screen projecting oral arguments. Bukovinac, founder of the organization Pro-Life San Francisco, knew her views on the case would be the minority.
Despite that, she felt confident. “I went in knowing they’re not going to win this,” Bukovinac said. “The 9th is obviously not as liberal as it used to be.”
The case, California v. Azar, was a high-profile one that involved whether the Trump administration could withhold family planning funds from facilities that provide or refer for abortions. Federal judges in California, Oregon, and Washington had blocked the policy, but a three-judge appeals court panel allowed the Trump administration’s rule to take effect. The case eventually made its way to a U.S. 9th Circuit Court of Appeals en banc review last Sept. 23.
Bukovinac’s gut feeling proved correct. On Feb. 24, the panel ruled 7-4 to uphold the administration’s new rule. Seven Republican-appointed judges, including two new Trump judges, outweighed four dissenting judges, all Clinton appointees.
In the 2016 presidential election, the Republicans’ focus on the Supreme Court seat left vacant by Antonin Scalia’s death very well may have secured then-candidate Donald Trump’s victory. But his allies are quick to say that Trump’s transformation of the judiciary writ large may be just as important and just as crucial for his 2020 reelection battle. President Donald Trump inherited 103 judicial vacancies, nearly double that of the Obama administration’s initial 54 openings. Now, his picks compose nearly a third of the judges on the U.S. Court of Appeals, and their impact on American law is already substantial.
During his campaign Trump promised to fill court vacancies with judges who would hew close to the Constitution on cultural questions about life, marriage, family, and religious liberty.
“There’s a number of recent decisions I don’t think would have been within the realm of possibility two or three years ago.”
In May 2016, his campaign released a list of possible Supreme Court picks to fill Scalia’s seat. His stump speech regularly exhorted voters to remember: “We don’t have four more years. They’ll start appointing justices of the Supreme Court. Remember that, [the] Supreme Court.”
A CNN poll after the election found that about 48 percent of all voters said the Supreme Court was an important factor in their decision. Fifty-six percent of those who voted for Trump listed it as the “most important factor.”
“This is something that really motivates the Republican base,” Carrie Severino with Judicial Crisis Watch told me. “Because they’ve been on the receiving end of liberal judicial activism.”
Since Trump has become president, the judiciary has proven essential to upholding his policies on hot-button cultural issues such as life, religious liberty, and immigration. Other than the 9th Circuit’s ruling in favor of Trump’s abortion funding policy, Trump-appointed judges also helped decide a case in Bladensburg, Md., determining that Christian symbols can stand in the public square, and let stand Trump’s rule that asylum-seekers must wait in third countries.
Senate Majority Leader Mitch McConnell (Ting Shen/Xinhua/Alamy)
Among the people Trump has to thank for accomplishing his promises regarding the judiciary, Senate Majority Leader Mitch McConnell, R-Ky., tops the list. About an hour after the news of Scalia’s death broke, McConnell announced he would hold that seat open for the next president to fill. Senate Republicans’ feet-dragging over President Barack Obama’s nominees also led to the backlog of pending nominations and vacancies.
Since Trump’s election, McConnell has made filling that backlog his top priority. He’s shrugged off his detractors’ accusation that he’s made the Senate a “legislative graveyard” and embraced the charge of being the “grim reaper” of Democrats’ policy goals. The Kentucky Republican not only prioritized scheduling confirmation votes, he also changed Senate rules to keep the conveyor belt of confirmations running as smoothly as it can in the face of unmitigated resistance.
McConnell says he simply took a leaf out of former Senate Majority Leader Harry Reid’s playbook. Reid used the “nuclear option” to change Senate rules and make most federal court nominees confirmable with just 51 votes instead of 60. McConnell extended that change to Supreme Court nominees. McConnell also changed the rules to require only two hours of debate for most nominations when senators requested a cloture vote.
Prior to the rule change, a request for a cloture vote required 30 hours of debate. Democrats requested cloture votes for nearly every one of Trump’s nominees, including his executive branch nominees.
Tom Jipping with the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation called the level of Democrats’ opposition to Trump nominees historically unprecedented. “They’ve made a lot of progress in the face of headwinds and resistance that’s off the charts,” he said of Republicans. “But there’s a lot of work to do.”
Trump’s allies say voters should not underestimate the impact of his picks on the lower courts. The Supreme Court’s caseload garners much of the public attention, but the high court only accepts around 100 of the 7,000-plus cases attorneys ask it to review per year. Meanwhile, hundreds of thousands of cases end at the lower courts.
“The Court of Appeals is normally the last stop for 99.9 percent of all federal cases,” said Mike Davis, who formerly worked as chief counsel for judicial nominations to then-chairman of the Senate Judiciary Committee Chuck Grassley, R-Iowa. Davis founded the Article III Project, which advocates for and supports conservative nominees. According to the Article III Project’s tracker, the Senate has confirmed 193 of Trump’s judges.
That includes 51 out of a total of 179 appellate judgeships. In comparison, President Obama only confirmed 55 appellate judges over the course of his entire two-term presidency. The appellate court is important for another reason: It’s one place presidents look when considering candidates for the Supreme Court.
Trump has also flipped three appellate courts from a Democratic-appointed majority to a Republican-appointed majority: the 2nd, 3rd, and 11th circuits. Other circuits, like the 9th, are moving to the right.
Long considered the go-to champion for progressive causes, the 9th Circuit initially seemed set to continue that role during the Trump administration. It ruled against Trump’s policies on healthcare (contraceptive mandates), immigration (the travel ban), and other issues. On that circuit, Democratic-appointed judges initially outnumbered their Republican counterparts by 18-7. But Trump’s first term has not left the 9th Circuit untouched. Now, the divide is 16-13.
“There’s a number of recent decisions I don’t think would have been within the realm of possibility two or three years ago,” Leonard Leo, co-chairman of the Federalist Society, said of the 9th Circuit’s shift.
Meanwhile, these shifts have caught the attention, and ire, of the left: Democratic presidential contenders in the once-large primary field cited concerns that a more conservative court could strike down environmental regulations, affirmative action, the Affordable Care Act, restrictive gun laws, and ultimately, unravel the right to abortion.
Among the suggestions for how Democrats could go on the offensive: abolish the Electoral College, expand the Supreme Court, codify into law the right to an abortion to circumvent a court ruling, and abandon the legislative filibuster. The presumptive Democratic presidential nominee, former Vice President Joe Biden, said he did not support court-packing or abolishing the Electoral College or the filibuster. But many other serious contenders endorsed some or all of the suggestions.
TRUMP’S RATE OF CONFIRMATION is likely to slow in 2020, and not just because of the COVID-19 pandemic. Judicial watchers say that in some ways, the Trump administration has been a victim of its own success, particularly with the lack of vacancies at the appellate court. U.S. District Court vacancies remain, but a Bloomberg Law analysis of Federal Judicial Center data in February found that nearly 84 percent of the District Court vacancies are in states with at least one Democratic senator or states with two Democratic senators. The practice of considering home state senators’ preferences in District Court nominations (known as the blue slip process) means the White House will have to work with Democratic senators on nominations to get judges across the finish line.
The Senate has confirmed a total of 138 of Trump’s District Court picks so far, but there are still 74 vacancies. Leo noted that, because of the blue slip process, “it takes longer for [the District Court bench] to shift,” and Trump allies say a second Trump term will be important to solidifying the change to the courts.
One strategy some are advocating is to encourage Republican-appointed judges to retire or take senior status, a form of semi-retirement, before November. The created appellate or District Court vacancies could be filled with younger, but still Republican, appointees. Even in the event that Trump doesn’t win reelection, this would extend the ideological makeup of the court.
“I always say, if these Republican-appointed judges care about their replacement, they have a short window of opportunity to retire so we can get their replacement nominated, confirmed, and appointed before the election,” Davis said. He added that this would be a precautionary strategy, as he believes Trump is going to win reelection.
Though she isn’t a Trump supporter, Bukovinac said she doesn’t think pro-life advocates are willing to risk losing the ground Trump has gained on the courts. “Pro-life people are primarily concerned with any openings on the Supreme Court. And overturning [Roe v. Wade] is a primary goal of the pro-life movement,” she said.
District Judge Justin Walker testifies during a Senate Judiciary Committee hearing on Capitol Hill May 6. (Jonathan Ernst/Pool/AFP via Getty Images)
Confirmations to the bench ground to a halt when Congress left town due to the COVID-19 pandemic. But once the Senate came back to town on May 6 after the monthlong recess, McConnell made judges the first order of business. That same day, the Senate Judiciary Committee held a hearing for Justin Walker, nominated for the U.S. Court of Appeals for the District of Columbia.
Walker currently serves on the U.S. District Court for the Western District of Kentucky. He previously clerked for both Justice Brett Kavanaugh when he was an appellate judge and retired Justice Anthony Kennedy.
In the three-hour hearing, Democrats slammed the 37-year-old Walker for his relative lack of experience and his membership in the Federalist Society. Last year, the American Bar Association rated Walker as “Not Qualified” for the Western District of Kentucky court due to his lack of trial court experience. This year, the ABA rated Walker as “Well Qualified.”
Democrats also made it clear their issue was not just with Walker but with McConnell’s focus on judges despite the coronavirus’s ravages on the economy and public health: “We’re in the middle of the greatest public health crisis in the history of our nation. We’re sitting in a committee with jurisdiction in so many critical areas when it comes to this crisis and instead Sen. McConnell is unwilling to set aside his wish list fulfilling the courts,” Sen. Dick Durbin, D-Ill., said.
McConnell says he won’t let anything sidetrack him. “My motto for the year is, ‘leave no vacancy behind,’” he told Hugh Hewitt in an interview in February. “That hasn’t changed. The pandemic will not prevent us from achieving that goal.”