President Trump is rapidly reshaping America’s judiciary ‘to end the progressive state as we know it’

This post first appeared at Fellowship of the Minds

A main reason why I voted for Donald John Trump last November 8th has to do with the courts — not just the Supreme Court, but also the circuit courts across America that wield profound influence over Americans’ lives. Whereas the Supreme Court hears about 80 cases a year, the 12 regional appeals courts get the final word on about 60,000 cases a year.

During last year’s presidential campaign, Trump promised to select conservative Supreme Court justices. Exit polls showed that court-focused voters helped deliver Trump’s victory.

True to his word, President Trump hasn’t been in office for even a year and he is already on the verge of putting more “originalist” (original intent of the Founders) conservatives in the circuit courts than any other President!

That’s because Trump was prepared and had a battle plan to reshape America’s judiciary, which he entrusted to an attorney named Donald F. McGahn II, who would become his White House counsel.

Charlie Savage reports for the New York Times, Nov. 11, 2017, that in the weeks before Trump was inaugurated, lawyers joining his administration gathered at a law firm near the Capitol, where McGahn filled a white board with a secret battle plan to fill the federal appeals courts with young and deeply conservative judges.

McGahn mapped out potential nominees and a strategy, according to two people familiar with the effort:

  • Start by filling vacancies on appeals courts with multiple openings and where Democratic senators up for re-election next year in states won by Trump — like Indiana, Michigan and Pennsylvania — could be pressured not to block Trump’s nominees.
  • Speed the nominees through confirmation.
  • Avoid clogging the Senate with too many nominees for the district courts, where legal philosophy is less crucial.
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Trump began with an unusually large number of court vacancies:

  • 21 open appellate seats because after Republicans gained control of the Senate in 2015, they essentially shut down the confirmation process.
  • 6 additional appellate judgeships have opened since Trump’s inauguration.
  • Nearly half of the 150 active appeals court judges are eligible to take senior status — semiretirement that permits a successor’s appointment — or will soon reach that age.

As a result of GOP control over both houses of Congress, Trump is the first Republican president whose nominees can be confirmed by simple-majority votes. And every single one of Trump’s judges is vouched by the Federalist Society and other conservative groups.

Leonard A. Leo, the executive vice president of the Federalist Society and an informal adviser to President Trump on courts, said Trump had instructed his transition team to prioritize appointing conservative judges who would be “strong” and could resist “tremendous political and social pressure.” Leo said:

“What makes this a unique opportunity in modern history is the sheer number of vacancies, the number of potential vacancies because of the aging bench, and the existence of a president who really cares about this issue in his gut . . . and recognizes that he could be a president who could help restore the judiciary to its proper role.”

Nearly a year later, Trump’s battle plan is coming to fruition:

  • Republicans are systematically filling appellate seats they held open during Obama’s final two years in office with a particularly conservative group of judges with life tenure. Democrats — who in late 2013 abolished the ability of 41 lawmakers to block such nominees with a filibuster — have scant power to stop them.
  • Trump has already appointed eight appellate judges, the most this early in a presidency since Richard M. Nixon. Thanks to Republican control, the Senate Judiciary Committee has voted to send a 9th appellate nominee, deputy White House counsel Gregory Katsas, to the floor.
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All of which prompted President Trump to say, “We will set records in terms of the number of judges. There has never been anything like what we’ve been able to do together with judges.” He added that many more nominees are in the pipeline.

Indeed, President Trump is poised to bring the conservative legal movement, which took shape in the 1980s in reaction to decades of liberal rulings on issues like the rights of criminal suspects and of women who want abortions, to a new peak of influence over American law and society.

 

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