McConnell Cements a Legacy for Trump with Reshaped U.S. Courts

The gold standard of excellence for more than 80 years, The United States Law Week® is the most authoritative way to keep up with important cases and other legal developments nationwide, in all...

By Sahil Kapur and Laura Litvan

President Donald Trump and Senate Majority Leader Mitch McConnell are rapidly filling U.S. federal courts with young conservatives who will shape American law for generations to come.

The Republican-led Senate confirmed Trump’s 15th appeals court nominee this week—more than the last five presidents at this juncture—with eight of the new judges in their 40s, and seven in their 50s. McConnell set the stage Thursday to confirm six more, one day after a committee voted to cut debate time, which if approved would further speed things up.

Mitch McConnell
Photographer: Andrew Harrer/Bloomberg

The court realignment is the product of the Senate Republican leader playing a long game by holding up then-President Barack Obama’s court nominees and then closely collaborating with Trump’s White House Counsel Don McGahn. Both men have made it a priority to advance judges ensconced in “originalist” legal thinking favored by the Federalist Society, which distrusts New Deal-era jurisprudence and seeks to limit the federal government’s ability to assert powers that aren’t explicitly enumerated in the Constitution.

“The judicial enterprise that has been embarked on by the president and McConnell is the most successful effort we’ve seen in the GOP in the last year and a half,” said Leonard Leo, an outside adviser to the White House on judicial selections who also serves as the Federalist Society’s executive vice president.

Trump’s record so far also includes 17 Trump-nominated judges on district courts, and conservative favorite Justice Neil M. Gorsuch is on the Supreme Court after McConnell made the extraordinary move of refusing to consider Obama nominee Merrick Garland in 2016.

Though liberals have torched the new judges as radical and out of touch, Trump has won praise for his success on nominees from conservatives, even those who actively opposed him during the 2016 election.

‘Originalists Against Trump’

“The high degree of competence and proficiency the administration has brought to this task is hard to reconcile with the haphazard and not always fully competent handling of lots of other issues by this administration,” said Jonathan Adler, a professor at Case Western Reserve University School of Law, Cleveland, and a Federalist Society member who praised Trump’s judicial picks as unexpectedly strong.

In 2016, Adler signed a letter titled “Originalists Against Trump” with five dozen fellow conservatives who argued that Trump “admires dictators as above the law” and cannot be trusted to respect the Constitution. Today, he says he was “very wrong” about that when it comes to Trump’s judicial selections, although he believes the heavy lifting is being done by McGahn and his staff, who have placed a premium on confirming their circuit court picks.

“I don’t see much evidence that the president has fully formed views on legal questions,” Adler said.

Yet some conservatives believe it’ll be his biggest legacy.

“His greatest achievement will be the judicial nominees, because it has a much longer-lasting legacy” than his other actions, said Representative Mark Meadows of North Carolina, chairman of the conservative House Freedom Caucus. “He gets an A+ for his nominations and the number that have been confirmed so far.”

Trump and McConnell are having their biggest impact on the 13 U.S. appeals courts, which are particularly influential. While the Supreme Court decides fewer than 70 cases a year, appellate courts ruled on or dismissed 59,040 cases for the year ending March 31, 2017, according to the Administrative Office of the U.S. Courts in Washington.

Major Impact

“These appellate judges are often the last step because so many cases never make it to the Supreme Court,” Leo said.

McConnell’s deputy chief of staff Don Stewart said the Kentucky Republican “met with President Trump and his team immediately after the election about the judicial vacancies and the need for well-qualified judicial nominees for the Senate to consider. He wasted no time.” He added that McGahn “has been incredible” in the process.

Liberal legal analysts, who have accused McConnell of stealing a Supreme Court seat from Obama, say they are troubled by Trump’s judicial selections and the speed of confirmations.

“He’s had a very effective process for moving judicial nominees, which is unfortunate because the quality of his nominees is so lacking,” said Caroline Fredrickson, president of the American Constitution Society, adding that Trump’s picks would feel at home in the 19th century. “They’re unqualified in certain circumstances. They’re extreme in nearly all circumstances.”

The judges he’s chosen are likely to roll back women’s rights—including abortion—civil rights, voting rights, gay rights, and allow billionaires to “buy politicians,” she said. “It’s as if the civil rights movement and the women’s rights movement have been erased as far as Donald Trump is concerned.”

The latest circuit judge, confirmed Tuesday by the Senate, was Duncan Kyle to the U.S. Court of Appeals for the Fifth Circuit. He came under fire from the Human Rights Campaign for an “alarming” record of “anti-LGBTQ advocacy,” earning just one Democratic vote to squeak by 50 to 47.

Trump has other opportunities. He announced another eight nominations for district and appellate courts April 26. Conservatives are eager to confirm as many nominees as they can this year while Republicans have a 51 to 49 majority, fearing a possible Democratic takeover of the Senate in November could slow them to a crawl in 2019.

Less Diversity

Trump’s judges reverse the demographic diversity sought by Obama. A full 67 percent of his appellate court judges are white males, compared with 33 percent under Obama and 63 percent under President George W. Bush, according to data compiled by Russell Wheeler, a visiting scholar at the Brookings Institution. Meanwhile, 76 percent of his district court jurists are white men, compared with 36 percent under Obama and 63 percent under Bush.

They’ll be reshaping areas of law like civil rights, public health and worker protections, said Nan Aron, president of the liberal Alliance for Justice in Washington.

“This effort is a concerted plan to alter the federal bench, not just for two or four years, but for generations because judges serve lifetime terms,’” Aron said.

McConnell’s chief contribution to the effort, she said, was his insistence on delaying consideration of dozens of Obama’s selections, in addition to holding the Supreme Court seat open. In Obama’s final two years, McConnell allowed him to fill just two vacancies on the circuit courts and 18 on district courts. That left Trump with 108 judicial openings to fill when he took office.

Josh Holmes, a former chief of staff to McConnell, said the Republican leader seldom makes strong requests to his conference, so when he does, they listen. And he’s made judicial confirmations a priority.

“It’s not the sexiest issue in the world, but 20 years from now it’ll undoubtedly be the most important thing this Congress has done,” he said.

Asked if he was concerned that Democrats could exploit the precedent by refusing to allow a Republican president to fill a Supreme Court vacancy, Holmes responded, “Democrats had invented the judicial filibuster in the early 2000s then did away with it in 2013. And so it was inevitable that retribution would come at some point, and it did.”

Democrats have tried to slow the pace of confirmations by insisting on using all of the extensive floor time they can utilize when judicial selections are under debate. That’s slowed confirmation of district court judges and forced McConnell to prioritize appellate court picks. It’s typically taking 176 days for appellate judges to get confirmed, still better than the median of 215 days under Obama and 178 days under Bush, according to Wheeler’s data.

Fredrickson lamented that White House chaos has overshadowed the judicial fights.

“If we lived in a normal time these nominations would be on the front page of every newspaper. They’d be the main story on every newscast,” she said. “There’s such an endless supply of outrages from this administration that it’s hard to get people to focus on the courts. And yet this is what Donald Trump is going to leave behind. It’s truly frightening.”

©2018 Bloomberg L.P. All rights reserved. Used with permission

Request U.S. Law Week