Earlier this month, Donald Trump chose Michael Brennan to fill an open seat on the 7th Circuit Court of Appeals. In doing so, he broke with a 38-year-old Wisconsin tradition.
For decades, when the 7th Circuit seat meant for a Wisconsin judge opened up, a bipartisan state commission voted on a jointly agreed-upon list of judicial nominees for the president to consider. The Wisconsinites gathered to do the same this year, but weren’t able to decide on a nominee for a seat that has been vacant for eight years, the result of Republican refusal to vote on Obama’s nominee for the seat.
So Trump went ahead and selected Brennan, a former Milwaukee County judge who is a close ally of Wisconsin’s Republican governor, Scott Walker. In 2011, while serving on a committee to help Walker select state-level judges, Brennan co-authored an op-ed in the Milwaukee Journal Sentinel supporting Republican efforts to block Obama’s nominee to the 7th Circuit Court — a nominee who would have sat in the very seat for which Trump has nominated Brennan.
Brennan’s nomination was one of the latest in Trump’s spree to fill as many open judicial seats as quickly as possible with young judges who fit a far-right, conservative mold. Many of these are lifetime appointments.
When Trump entered office, he inherited over 100 judicial vacancies. The number of judicial vacancies grew during the Obama administration, when Senate Republicans refused to confirm many of Obama’s nominees to the seats Trump is now filling. When Obama entered office, there were 54 judicial vacancies. President Trump now has the opportunity to fill over 130.
Those who closely watch the courts — legal reporters, scholars left and right, and US senators — agree: Trump’s efforts to transform the federal judiciary may be the most enduring accomplishment of his presidency.
“This will be the single most important legacy of the Trump administration,” Democratic Sen. Chris Coons of Delaware told Business Insider’s Allan Smith. “They will quickly be able to put judges on circuit courts all over the country, district courts all over the country, that will, given their youth and conservatism, will have a significant impact on the shape and trajectory of American law for decades.” Trump has the power, Coons said, to bring about “a wholesale change among the federal judiciary.”
After Neil Gorsuch’s confirmation to the Supreme Court, recently ousted Heritage Foundation president and former US Sen. Jim DeMint (R-SC) wrote that “President Trump should be applauded for carrying through on his promise to appoint good judges from this list, and conservatives hope he continues to use the list for any future appointments.” The list DeMint was referring to was one Trump released detailing his potential Supreme Court nominees, which Trump explicitly acknowledged was put together by conservative groups like the Heritage Foundation and the Federalist Society.
Playing the Long Game
In the seven months since he took office, Trump has nominated 37 judges, including Supreme Court Justice Neil Gorsuch. Five have been confirmed. For comparison, by this point in Obama’s term, only Supreme Court Justice Sonia Sotomayor had been confirmed. In the first full year of the Obama presidency, the Senate confirmed just three of Obama’s nominees for the federal court of appeals — fewer than the number of Trump appointees confirmed in his first six months.
Trump’s brazen effort to reshape the judiciary by nominating judges who are ideological and outspoken about their beliefs, particularly on social issues, is a strategy some conservatives have advocated for decades — and one Trump embraced during the election. “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, Supreme Court judges,” Trump said at a rally in Cedar Rapids, Iowa, in July 2016.
Trump was, in fact, taking aim at the judiciary as early as April 2016, when, during a television town hall, he said that there should be “some form of punishment” for women who get abortions if the procedure is outlawed. By the end of that week, he said, “The laws are set. And I think we have to leave it that way.” His spokesperson, Hope Hicks, attempted to clarify, telling reporters that Trump would “change the law through his judicial appointments and allow the states to protect the unborn.” Today, it seems Trump plans to make good on that promise.
Senators Get on Board
The fear of an ideologically motivated judiciary is not new. The extent to which our judges are truly apolitical was a question being debated long before Trump entered office. And yet, the politicization of the judiciary is not an on-or-off switch. Trump’s many nominees, and the basis by which he is picking them, will push the American judiciary firmly in one direction for decades to come, in a manner that will affect every individual who enters one of his chosen judges’ courtrooms, reshaping the justice system in the process.
Ron Klain, a lawyer who advised the Obama administration on Merrick Garland’s unsuccessful confirmation process, recently calculated that, given the rate the administration is currently confirming judges, one-eighth of all cases filed in federal court will be heard by a judge Trump appointed by the end of 2018.
Like much of the Trump administration’s successes, the judicial nomination process, high-speed and precarious as it is, is ultimately effective because Republican senators support Trump’s nominees, despite spoken hesitation.
For instance, during his nomination hearings, Sen. John Kennedy (R-LA) found 52-year-old judicial nominee John Bush problematic. “I’ve read your blog. I’m not impressed,” Kennedy told Bush. Bush has “a long history of making homophobic and sexist comments,” writing under a pseudonym on his wife’s blog, Elephants in the Bush. Sen. Al Franken (D-MN) took him to task for linking to “phony stories from paranoid right-wing internet corners,” including WorldNetDaily, a fake news website that promoted the Birther Lie, among other conspiracy theories.
But Kennedy voted in favor of Bush’s confirmation anyway — as did every other Republican senator (except the absent John McCain) — later releasing a statement: “His academic credentials are impressive, and after talking to people who know Mr. Bush better than I do, I believe he will be an impartial, just-call-the-balls-and-strikes judge.”
Another Trump nominee, 37-year-old Damien Schiff, is a member of the Federalist Society and works at the Pacific Legal Foundation, which advocates for “private property rights, individual liberty, free enterprise, limited government and a balanced approach to environmental protection.” As a judge on the US Court of Financial Claims, Schiff would oversee environmental and agency lawsuits. In the past, he’s accused the Environmental Protection Agency of treating Americans “as if they were just slaves” and recommended selling Yosemite National Park to the Walt Disney Company because they’d “do a damn better job, I think.”
He also moonlights as a blogger. In one post, he called Associate Justice Anthony Kennedy a “judicial prostitute” for “‘selling’ his vote as it were to four other Justices in exchange for the high that comes from aggrandizement of power and influence.”
At Slate, Dahlia Lithwick reports that during Schiff’s nomination hearing,
Sen. Sheldon Whitehouse observed that “if President Obama had sent in a nominee who had called Justice Kennedy a ‘judicial prostitute,’ the other side of this dais would have its hair on fire.” Whitehouse didn’t even bother to question the lawyer/blogger, yielding his time with the observation that “this just isn’t normal.”
Schiff passed the committee 11-9 on a straight party-line vote. His nomination will be voted on by the full Senate later this year. Democrats won’t be able to filibuster since Sen. Harry Reid, in retaliation for partisan gridlock during the Obama years, moved to limit the use of the filibuster for lower-court judicial nominees in 2013.
“Once you put a bad judge on the federal bench, it hurts not just the liberal and progressive agenda — it hurts everybody who comes into their courtroom,” said Nan Aron, the founder and president of Alliance for Justice, a progressive organization that follows the judiciary.