The president’s judicial appointments have been a quieter project than most of his flamboyant presidency, but will have longer-lasting impacts on healthcare, voting rights, criminal justice and the climate
by Tom McCarthy in New York
For all the extravagant projects of the Donald Trump presidency, and for all its flamboyance and bluster, his makeover of the judiciary – a quieter project that has been ratcheted forward by a network of quieter people – may prove to have the longest and most far-reaching impacts on the daily lives of Americans.
All new presidents change the courts by filling vacancies. But what is only now coming into focus is the impact that Trump’s unprecedented number of judicial appointments is having on the courts, ruling by ruling, and on the day-to-day lives of Americans, in areas such as healthcare, voting rights, criminal justice, anti-discrimination efforts and the climate.
“The change is happening. It’s happening before our very eyes,” said Sheldon Goldman, a professor of political science at the University of Massachusetts at Amherst who focuses on the federal bench.
While the US supreme court is the country’s highest judicial authority and attracts most national and international attention, it is the country’s appeals courts that have the last word on justice in the vast majority of cases. They hear thousands of cases each year, compared with the 100-150 the supreme court typically hears. And largely unlike the British court system, federal judges in the United States are selected by politicians in a process that has become an intense area of focus for outside partisans.
Trump has notched more confirmations of appeals court judges, faster, than any president at a similar stage in history, a record he frequently gloats about and cannot resist inflating.
Trump has appointed 51 out of the 179 active circuit court judges, or almost 30% of the entire bench, and next month the total is expected to hit 53. By comparison, Barack Obama appointed 55 circuit court judges and George W Bush appointed 62 – in eight years each. Trump’s judges, who can serve for life, have a starting median age of 48.2, compared with 52.8 for Obama and 51 for Bush. As the country demographically becomes more diverse, they are predominantly male and white, and ideologically they tend to inhabit deep right field.
Together, they are changing America.
The Trump administration has come under fire for its dithering and denial in the face of the coronavirus pandemic since the first fatal case outside China was recorded on 2 February. But the White House has been a hive of focused activity when it comes to advancing judicial appointments.
Keeping up a brisk clip established early in his presidency, Trump has advanced 19 judges to fill federal vacancies since early February, in unwavering pursuit of his grand project to impose a new, conservative cast on American justice.
And even as the virus rages, the Senate majority leader, Mitch McConnell, has vowed to make confirming the judges the first order of business when the chamber reconvenes early next month.
“My motto for the year is leave no vacancy behind,” McConnell said in a radio interview on Wednesday. “That hasn’t changed. The pandemic will not prevent us from achieving that goal.”
The Guardian reviewed dozens of cases affected by Trump’s judges, which included creating majorities in rulings that targeted immigrants and workers and undermined protections for society’s most vulnerable. They have:
Attacked the Affordable Care Act and chipped away at healthcare.
Greenlighted funding for Trump’s border wall.
Stepped aside to allow partisan gerrymandering.
Defended abusive policing.
Permitted encroachments on the Americans with Disabilities Act.
Shrugged at emergency requests in death penalty cases.
Established and reinforced religious exemptions from anti-bias laws.
“We had fears about what these jurists would do when they got on the bench, just from their records,” said Marge Baker, executive vice-president of People for the American Way (PFAW), which has just unveiled a report called Shredding the Social Safety Net on “the Republican plot to use federal courts to destroy public health”.
“This administration more than any has really been putting movement ideologues on the bench who have an agenda. And once we got far enough into the administration, we realized that the judges about whom we had fears were issuing decisions that were highly problematic.”
A clear example of the impact of Trump’s judicial project was seen last spring, when the Trump administration stepped up its war on reproductive rights with new regulations gagging healthcare providers from fully counseling millions of mostly low-income women about their options while pregnant.
The new rules threatened to shutter Planned Parenthood clinics and other facilities that offer abortion services alongside healthcare subsidized by federal funds.
As with Trump’s original travel ban, the family planning regulations seemed clearly illegal, with a decades-old reef of legislation protecting healthcare funding from just such attacks by conservative activists.
Three western states immediately sued, and before long a trio of district courts had issued injunctions suspending the new Trump rules. The cases landed on appeal as a package last summer before the ninth circuit court, one of the 13 federal appeals courts, a step below the US supreme court, which are the last stop for justice in almost every case.
Once upon a time, Trump would have, literally, cursed the venue. District judges in the ninth circuit, historically among the most progressive in the nation, had been fastest to block his travel ban and challenge his incursions on immigration, LGBTQ and voting rights. In 2018, when a district judge in the ninth circuit blocked Trump restrictions on asylum applications, Trump tweet-raged that “the 9th Circuit is a complete & total disaster” and “out of control” with “a horrible reputation”.
In the last two years, however, the ninth circuit has changed.
Court vacancies and ruthless engineering by McConnell have allowed Trump to install 10 new judges on the ninth circuit, which with 29 active judges total is by far the biggest in the land. When the family planning cases landed before the court last year, two Trump appointees were selected at random to sit on an 11-member ruling panel.
In late February, the court handed down its decision. The judges split 7-4 precisely according to the party identities of their appointing presidents. To the shock of longtime observers of the federal courts, the ruling greenlighted Trump’s family planning restrictions – with the sure result, in the words of dissenting Judge Richard Paez, that “women and their families will suffer for it”.
“The majority disregards 20 years of progress, insistent on hauling the paternalism of the past into the present,” Paez wrote. He quoted a district judge in Oregon: “This is madness.”
But as shocking as the ruling might have been, scholars saw in the ninth circuit decision a clear augury, “a precursor for what we’re likely to see in the future,” according to Carl Tobias, a professor at Richmond School of Law specializing in federal judicial selection.
“That’s a classic case that shows you how much power these new judges have,” Tobias said. “That’s a concrete example of the changing dynamics of that court.”
In case after case, the rulings of Trump’s picks represent not the preference of a majority of the public, but the preference of a shrinking American conservative minority whose grip on power runs through the US Senate and its exclusive power to confirm federal judges, here exploited mightily.
The latest census projections in 2018 suggested that the US will become “minority white” in 2045, yet Trump’s judges are almost uniformly white and male, in direct opposition to the changing demographics of the country.
Experts caution that many Trump appointees are very recent arrivals on the bench and the extent to which they have shifted or will shift the law of the land won’t be clear for five years or more.
Most circuit court rulings are made by panels of three judges selected from each court’s total judges pool, averaging 13 in number, and Trump judges don’t rule on every case.
Likewise, the addition of a Trump judge to a court does not necessarily change its overall balance. In fact, a 63% majority of Trump judges replaced judges who had been appointed by previous Republican presidents, according to analysis by Russell Wheeler, a visiting fellow at the Brookings Institute.
“I think it’s just a little early to begin making determined judgments about how much things have changed on the courts of appeals,” Wheeler said.
But the data is beginning to pile up, in rulings starting at the top – the supreme court, where Trump has installed two justices out of nine, Brett Kavanaugh and Neil Gorsuch. In the last two years, Gorsuch and Kavanaugh have joined controversial decisions on voter purges, immigration, public unions, prisoners’ rights, Trump’s travel bans, the environment and more. In March, the pair for the first time heard oral arguments in a major abortion case that could undermine Roe v Wade.
Supreme court decisions draw a lion’s share of public attention, but the circuit courts have an arguably greater role in shaping daily life, and recent circuit rulings give plenty of cause for alarm, said Baker.
“Everything that people think of and care about in terms of quality of their daily lives – access to healthcare, access to clean water to drink and clean air to breathe, protections in the workplace from discrimination, the ability to marry the person they love and be free from discrimination whether it’s based on their gender or race or status as an LGBTQ person – all of that the courts are deciding on a daily basis,” Baker said.
To capture a picture of how Trump’s judges are changing the country, Baker’s organization has built an interactive catalog called Confirmed Judges, Confirmed Fears. The database includes analysis of rulings by Trump judges sortable by topic and by judge name.
“The increase in the number of Trump judges means you have more and more cases where you might very well have two Trump judges in the majority” on a three-person panel, said Elliott Mincberg, a senior fellow at PFAW. “And that’s happening more and more.”
Meanwhile traditionally more conservative circuits, such as the New Orleans-based fifth circuit, have taken a noticeably hardline turn under Trump judges (the fifth circuit has five out of 17, with one vacancy about to be filled by a sixth Trump nominee). In December, a Trump judge on the court joined a two-to-one majority attacking Obama’s healthcare law, ruling that the former “individual mandate” to carry health insurance was unconstitutional. Other judges on the court have joined controversial opinions on border wall construction, voting rights and fair housing.
Even in cases where Trump judges replaced judges appointed by an earlier Republican, Trump’s judges as a group espouse a more extreme conservative philosophy – which may be enhanced in practice if the judges see their appeals court jobs as tryouts for the US supreme court.
“I’m sure that at least some of them are doing their judging with one eye on the health of Ruth Ginsburg and Steve Breyer,” said Wheeler. “Wondering, ‘what can I do to persuade the administration that I’d be a great person to appoint to the supreme court?’”
In critiquing the recent ninth circuit decision on family planning, Paez warned that Trump’s judges were seeking to turn back the clock of American jurisprudence.
“The majority would return us to an older world, one in which a government bureaucrat could restrict a medical professional from informing a patient of the full range of healthcare options available to her,” he wrote.
“I strongly dissent.”