Donald Trump is radically reshaping the same federal courts that have been the biggest threat against his agenda – by picking mostly white, conservative men.
Donald Trump has sustained more than his fair share of political losses during the first 10 months of his presidency, mostly at the hands of the federal courts.
It was the federal courts that struck down his “Muslim travel ban” on three separate occasions, that blocked his ban on trans people in the military and that did the same to his attempt to defund so-called sanctuary cities.
But the makeup of America’s judges is quietly becoming the site of one of Trump’s most unequivocal successes: nominating and installing judges who reflect his own worldview at a speed and volume unseen in recent memory. Trump could conceivably have handpicked more than 30% of the nation’s federal judges before the end of his first term, his advisers have suggested, and independent observers agree.
“The president himself has said that he expects this to be one of his major legacies. He is going to reshape the bench for generations to come,” said Douglas Keith, counsel with the fair courts arm of the Brennan Center for Justice.
“I do think this deserves more attention given the consequence, the significance of what will eventually be a wholesale change among the federal judiciary,” he continued.
Much has been made of Trump’s failure to get legislation through Congress and received wisdom suggests that he has little to show for his first 10 months in power. However, the lasting impact that court picks have on the lives of Americans means that Trump’s choices – and the sheer numbers involved – will help reshape America for the next half-century.
Until recently little attention has been paid to Trump’s judicial appointments. But Senator Chris Coons, a Democrat from Delaware and a member of the Senate judiciary committee, identified the importance of these appointments early on. In June he said: “This will be the single most important legacy of the Trump administration. 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, have a significant impact on the shape and trajectory of American law for decades.
The lack of diversity in Trump’s picks was highlighted by the Associated Press. They ran the numbers on the 58 people nominated by the Trump administration to lifetime positions on appeal courts, district courts, and the supreme court. Of those, 53 are white, three are Asian American, one is Hispanic and one is African American.
Forty seven are men and 11 are women.
Since a disproportionate percentage of non-white Americans find themselves at the sharp end of the judicial system this means that in many cases it will be white male judges passing judgment on Americans of color. They will also have extensive input on all manner of civil rights, environmental, criminal justice and other disputes across the country.
All presidents appoint federal judges who are philosophically aligned with their own party and ideology. Casual observers will be familiar with how this dynamic plays out in relation to supreme court nominees, the rarefied picks that most presidents only make a handful of times. But supreme court justices represent just a small percentage of the broader federal judiciary, with roughly 850 seats in regional federal courts nationwide. In many cases, it is these jurists that have the final say on the law of the land in the US, since the supreme court only hears a relatively small number of cases every year.
And for these posts, Trump’s candidates have been whiter, more male and, according to the American Bar Association, less qualified than any incoming cohort in decades.
“I think the goal is to end the progressive state as we know it,” said Baher Azmy, Legal Director of the Center for Constitutional Rights, a progressive-leaning legal advocacy group.
Perhaps the most brazen of Trump’s early picks is Brett Talley, an Alabama attorney just three years out of law school who has yet to try a case. The American Bar Association gave Talley a unanimous rating of “unqualified” for the post but that did not stop him from breezing through a confirmation hearing in the Senate judiciary committee. Neither did the fact that Talley appears to have blogged favorably about the KKK and statutory rape on message boards and failed to disclose in his questionnaire that his wife is a staffer in the White House.
Trump is “appointing hacks and cronies which I think is either intentionally or just has the effect of signaling contempt for legal process”, Azmy said.
Some of the other stand-out Trump picks include Jeff Mateer, a Texas attorney who has openly admitted that he discriminates against LGBT people, and Thomas Farr, who has spearheaded multiple legal efforts to suppress the black vote in his home state of North Carolina.
“It is no exaggeration to say that had the White House deliberately sought to identify an attorney in North Carolina with a more hostile record on African-American voting rights and workers’ rights than Thomas Farr, it could hardly have done so,” wrote the Congressional Black Caucus in a letter to Trump urging him to withdraw the nomination.
One thing Mateer, Talley and Farr all have in common, like a startling 74% of Trump’s nominees, is that they are all white men. According to the Associated Press, if Trump continues on this trend through his first term, he will be the first Republican since Herbert Hoover to name fewer women and minorities to the court than his GOP predecessor.
“This is a striking move in the direction away from diversity that is not just attributable to them wanting to appoint more conservative judges,” who will tend to be whiter and more male than the general population, said Douglas Keith.
And the impact that can have for generations is hard to overstate. “Federal courts shape laws, they shape the constitution, they affect people’s rights, and at core they impact how our democracy functions,” Keith said. “Conservatives have understood the importance of these courts, they’ve been organizing around them for decades, and have been able to move their supporters in ways that the left hasn’t.”
That has involved, first and foremost, building a pipeline of potential conservative candidates, Keith said. Conservative groups like the Federalist Society and the Heritage Foundation have become de facto clearing houses for Republican presidents and they absolutely have Trump’s ear.
According to the Hill, of the 13 judicial nominees confirmed since President Trump took office, 10 are either current or former Federalist Society members or regular speakers at its events.
The organization describes itself as “a group of conservatives and libertarians interested in the current state of the legal order”, and operates on the premise that “law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology”. Clarence Thomas, Jeff Sessions and the late Antonin Scalia are among the society’s more well-known alumni.
The non-partisan American Bar Association, which for decades had offered the White House its opinion on the qualifications of nominees was removed from the process by Trump in favor of Federalist Society influence. So far they have rated four of Trump’s nominees unqualified, four more than they ever did under the previous administration.
Thus far the Republican-controlled Senate judiciary committee has been little more than a rubber stamp for Trump’s nominees, having advanced all of his picks through hearings so far. This drew scorn from Democratic committee member Sheldon Whitehouse who earlier this month called the hearings “a joke” and complained that candidates had been studiously coached on “how to withstand all of five minutes of questioning by senators”.
Trump also inherited a massive cache of over 100 judicial openings when he came into office, more than twice that of his predecessor Obama in 2009. That’s because, even as Trump has routinely lambasted Democrats as the party of obstruction, it was Republicans for most of Barack Obama’s term who slowed the confirmation of judicial nominees to a slow crawl. Since his inauguration the number of openings has grown to more than 160 – that’s about half the 323 regional federal judges Obama nominated and had confirmed during his full eight years in office, and Trump has only been in office for 10 months.
It is true that, even as Republicans have picked up the pace of confirmations, Trump cannot fill all those 160 openings overnight. But after sweeping Democratic election wins in races earlier this month, anxious conservatives are going to start pushing Trump to get as many nominees as possible through before the 2018 midterms.
“Obviously, who gets nominated and the pace of confirmations … changes dramatically if the Senate were to flip back to the Democrats,” said John Malcolm, a former justice department lawyer and now an analyst at the Heritage Foundation in Washington. Republicans “should be paying particular attention to pushing through as many nominees as they can”.