If you want to know why Donald Trump’s appointments to the judiciary are so significant, have a look at these numbers.
In 2015, the US supreme court decided approximately 82 cases. In 2016, it was approximately 69. In contrast, the United States courts of appeals decided 52,000 cases in 2015 and 58,000 in 2016. The United States district courts decided 353,000 cases in 2015 and 355,000 in 2016.
While the supreme court is the court of last resort – and the one that attracts most attention - the judicial business of the United States is decided in what are called “the lower courts”. The judges appointed to these courts decide 99.9% of all cases.
Most cases never reach the supreme court. It is the so-called lower courts that play a critical role in deciding a wide range of issues. These judges have decided cases involving voting rights, contraception, privacy, sentencing, prisoner rights, gay rights, immigration, desegregation in schools and housing, employment discrimination, affirmative action, workplace rules, environmental impacts, and many others that shape US society. The impact of their decisions are felt daily by more than 300 million Americans.
This is the background needed to understand the importance of Trump’s judicial nominations during his first year in office. Much has been made of the administration’s legislative failures but Trump’s judicial appointments are calculated to have a more lasting impact on American life than many if not all of his proposed legislative initiatives.
Unlike legislation, these life-time appointments are not reversible. That is why it is so important to scrutinize who he is placing on these benches, and what impact they will have.
There are now approximately 144 vacancies in the federal courts, and Trump has already succeeded in appointing 14 judges, meaning that he began his term with more than 150 vacancies –10% of the federal judiciary.
There is a simple reason this president had so many vacancies to fill at the start of his term – it is called political obstruction. In the final year of the Obama administration, the Republican majority simply refused to confirm many of the president’s nominees.
A number of nominations simply lapsed without a committee hearing and never reached the Senate floor.
Trump has now nominated 16 judges for the courts of appeals, and 44 judges for the district courts to fill these vacancies. A mere 11 of these nominations are female (18.3%). Only one nominee is African American and only one is Hispanic (each 1.6%).
By contrast, in his eight years in office, Barack Obama appointed 324 judges, of whom 41.9% were women, 19% were African American and 10% were Hispanic.
Although white males make up only 31% of the US population, they account for approximately 80% of the president’s picks. People trust their courts when the judges reflect the makeup of the population they serve. But it is not just the gender and racial makeup of Trump’s appointments that merit scrutiny. There are other reasons for concern.
Four of Trump’s nominees have been given a “not qualified” rating by the American Bar Association – an institution that has recently been ousted from the vetting process, despite having assisted previous presidents with the vetting since 1953. Four of Trump’s nominees have been given a “not qualified” rating by the American Bar Association – an institution that has recently been ousted from the vetting process, despite having assisted previous presidents with the vetting since 1953. Prior to these four, no other nominee has received this rating in the past 11 years.
Just this past week, Senator Charles Grassley, chair of the Senate judiciary committee, announced that he would override the 100-year old tradition of deferring to home-state senators before permitting his committee to vote on a judicial nominee. This action is a rejection of a long-standing effort to encourage bi-partisan approval of judges and seek to achieve consensus choices as often as possible. This only serves to further politicize the appointments process.
But this politicization was already under way with the demise of the filibuster rule that had required a supermajority of 60 votes to confirm a judicial nominee. This practice ended in November 2013 when a Democratic majority in the Senate invoked the “nuclear option” of abolishing the rule for all judicial nominees other than for the supreme court.
The Democrats understood that they acted at their peril in taking this action. But they had no choice. The Republican minority routinely invoked the filibuster rule to block Obama’s nominees. The nuclear option was the only way to break the logjam. The result was the demise of consensus and bipartisanship. Six of Trump’s first 14 judges were confirmed with less than 60 votes. Their nominations would have failed if the filibuster rule was still in effect.
Trump’s selection process also raises serious concerns about the criteria for selecting new judges. The president has virtually ceded the selection of judges to the Federalist Society and the Heritage Foundation – two very conservative groups.
These two entities have supplied the strategy for obtaining quick confirmations and have identified the nominees for the most important judicial slots. The nominees are generally known as originalists and textualists who favor a very narrow reading of the constitution. They would roll back the expansion of civil rights and civil liberties that have developed over the past seven decades since the heyday of the Warren court.
What has been most astounding is the rapid pace of committee hearings and confirmations for Trump’s judicial nominees. This breakneck pace is unprecedented. In his first six months, Trump had selected 27 lower court judges. The next speediest was Obama, who named 10 during the same time frame. Trump is on track to double the number reached by any other president in his first year. Just this week, Trump appointed his 9th circuit court judge. Obama, by contrast, just appointed three in his first year.
But it is the quality and ideological extremism of the Trump appointments that has raised the most concern. As a group, the nominees are deeply conservative. It is likely they would reverse abortion rights, gay rights, and affirmative action. They are generally supportive of deregulation and are sceptical of any judicial efforts to correct unconstitutional policing or inhumane prison conditions. It is unlikely they will vigorously protect voting rights or the rights of minorities and immigrants.
When Obama took office, 10 of the 13 courts of appeals consisted of predominantly Republican-appointed judges. By the time he left office eight years later, only four of these courts were made up of predominantly Republican-appointed judges.
Trump and his close advisors see this as the principal reason these courts rejected his travel bans, or had earlier rejected efforts to enforce strict voter ID laws, transgender and gay rights, or to limit the availability of contraception coverage and abortion services.
If he can shift the balance of the appellate courts, he believes that he will be able to obtain more favourable rulings on all of these and other key social issues. These rulings could dramatically shape the course of American social and cultural life over the next 30 or 40 years.
One of Trump’s judicial nominees has equated denying civil rights to African-Americans to denying civil rights to aborted foetuses. The same nominee has supported “conversion therapy” for LGBTQ youth and has supported legislation that would allow employers to discriminate against gay employees under the guise of religious liberty.
Another nominee has called Justice Anthony Kennedy a “judicial prostitute” for supporting gay rights. One nominee stated that being Muslim is synonymous with being a terrorist and has called transgender children “part of Satan’s plan.”
A memorandum made public last week proposed a dramatic court packing plan that would give Trump hundreds of new appointments to the federal judiciary. Should this pass, the partisan, non-consensus picks would make the federal judiciary a conservative stronghold that could not shift for decades.
This would undoubtedly be Trump’s greatest triumph and his most lasting legacy.
- Shira A Scheindlin is a former United States district judge for the southern district of New York, where she served for 22 years. She was appointed by Bill Clinton. She is a member of the executive committee of the board of the Lawyers Committee for Civil Rights Under Law
- This article was amended on 1 December to clarify that it has been 30 years since a nominee given a “not qualified” rating was confirmed. The last time a nominee received this rating was 11 years ago, not 30 as previously stated.