President Trump’s Opportunity to Reshape the Federal Judiciary

by John Anthony Maltese

Donald Trump’s most significant domestic achievement as president may well be his appointment of federal judges. This not only includes his appointment of Neil Gorsuch to the United States Supreme Court (which Senate Majority Leader Mitch McConnell called “the single most significant thing this president has done to change America”), but also his appointments to the lower federal courts (which decide the vast majority of cases at the federal level).

At both levels, Trump is poised to transform the ideological makeup of the judiciary. With Gorsuch’s appointment, the Supreme Court is evenly divided between a block of four conservative-leaning justices (Chief Justice John Roberts and Associate Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch) and four liberal-leaning justices (Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan). In between them, the centrist Associate Justice Anthony Kennedy serves as a “swing voter” who sometimes sides with the conservative block—as he did in Citizens United v. FEC (2010) (which held that the First Amendment of the Constitution prohibits the government from regulating political contributions made by corporations and unions), and sometimes sides with the liberal block—as he did in Obergefell v. Hodges (2015) (which struck down state bans on same-sex marriage).

By the start of next year’s term, Justice Kennedy will be 82 years old, and while the average age of the conservative block is only 62, the average age of the liberal block is almost 71. Justice Ginsburg will be 85 at the start of the next term, and Justice Breyer will be 80. Should Trump have the opportunity to replace any one of those three justices, he could create a reliably conservative block that would push the Court in a new direction. Should he have the opportunity to replace all three, he could transform the ideological makeup of the Court for a generation or more.

President Trump had the opportunity to nominate Gorsuch because the Republican-controlled Senate refused even to hold hearings on President Barack Obama’s nomination of Merrick Garland to replace Justice Antonin Scalia, who died unexpectedly in February 2016. Depending upon one’s political perspective, that decision was either a brilliant tactical move designed to give voters a chance to weigh in on the choice of a justice, or blatant obstructionism designed to deprive Obama of an appointment that was rightfully his.

However one views that decision, it was highly unusual. President Obama nominated Garland with more than ten months left in his presidency. Prior to the Garland nomination, the average length of time required to confirm, reject, or withdraw a single Supreme Court nominee was only 25 days. Only two successful nominees in the twentieth-century took longer than 100 days to be confirmed (Woodrow Wilson’s nomination of Louis Brandeis in 1916 took 125 days, and Dwight Eisenhower’s nomination of Potter Stewart in 1959 took 108, although he already sat on the Court by way of a recess appointment).

Senate rejection of one or more nominees can extend the time it takes to fill vacancies, but even Richard Nixon’s ill-fated attempt to fill the vacancy left by Abe Fortas, when the Senate rejected two of his three nominees, required fewer days than the 310 left in Obama’s presidency on the day he nominated Garland. In fact, history shows that presidents have routinely nominated and the Senate has routinely considered Supreme Court nominees in the same year as the election of a president’s successor. Andrew Jackson went so far as to nominate two Supreme Court justices on his last day in office. The Senate confirmed both.

Trump also has a unique opportunity to transform the ideological makeup of the lower federal courts. This, too, is partly because of a successful effort by Republicans to block Obama’s nominees. During his last two years in office, the Senate confirmed only 18 of Obama’s District Court nominees and only two of his Court of Appeals nominees, while failing to act on 52 of his nominations. This stood in stark contrast to how judicial nominees fared in the last two years of other recent two-term presidencies. For example, during Ronald Reagan’s last two years, the Senate confirmed 67 District Court nominees and 17 Court of Appeals nominees; during Bill Clinton’s last two years, the Senate confirmed 58 District Court nominees and 15 Court of Appeals nominees; and during George W. Bush’s last two years, the Senate confirmed 58 District Court nominees and 10 Court of Appeals nominees.

Thus, Trump entered office with twice as many judicial vacancies as Obama had when he entered office. Trump also has the benefit of aging judges on the lower federal judiciary. On the particularly important U.S. Courts of Appeals, 44% of the active judges are old enough to take “senior status”—a form of semiretirement that would allow Trump to nominate their successors. This is a much higher percentage than any other recent incoming president has faced (15% were eligible for senior status for Ronald Reagan; 16% for George H.W. Bush; 13% for Bill Clinton; 14% for George W. Bush; and 27% for Barack Obama).  Thus, Trump has the opportunity to appoint more federal judges than any president in forty years.

Senate rules changes will also make it easier for Trump to secure confirmation of his nominees. Frustrated by Republican obstruction of Obama’s nominees when the Democrats controlled the Senate, Democrats exercised the “nuclear option” and removed the filibuster as a tool to block lower federal court judges in 2013. When employed, the filibuster would require 60 votes (rather than the simple majority of 51) to confirm judges. Faced with a similar threat that Democrats would filibuster Gorsuch, Republicans followed suit in 2017 and took away the opportunity to use filibusters against Supreme Court nominees. They have also threatened to take away other procedural tools used to block nominees, such as the “blue slip”, which allows Senators from the state where District Court vacancies occur, to veto nominees.

The combination of high vacancy rates and greater ease of confirmation has already paid off for Trump. In stark contrast to its initial disarray over formulating a legislative agenda, the Trump administration hit the ground running when it came to judicial appointments. It immediately began vetting young, conservative candidates for the president to consider. The president followed through with judicial nominations at a faster rate than other recent presidents. The confirmation process for judges likewise unfolded smoothly and systematically. By November 15, 2017, the Senate had not only confirmed Trump’s Supreme Court pick, but also confirmed eight of Trump’s nominees to the Court of Appeals (with ten more pending) and five of his District Court nominees (with 35 more pending).

These judges will influence decisions on a wide range of issues, including such politically volatile topics as abortion, affirmative action, gun control, immigration, LGBTQ rights, and voting rights. That is why, at a White House event in October 2017, President Trump called judicial appointments “the untold story” of his administration—one that “has consequences 40 years out, depending on the age of the judge.” And “many, many are in the pipeline,” the president added—“we will set records in terms of the number of judges.” On this, the president did not exaggerate.

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John Anthony Maltese is Associate Dean of the School of Public and International Affairs. He is the Albert B. Saye Professor and a Josiah Meigs Distinguished Teaching Professor. His books include The Selling of Supreme Court Nominees, Understanding a New Presidency in the Age of Trump, The Politics of the Presidency (currently in its 9th edition), and Spin Control: The White House Office of Communications and the Management of Presidential News.