Republicans Working to Make Their Mark on Judiciary

Republicans’ successful tax reform package is rightfully receiving a lot of attention for buoying the party’s midterm hopes. But one issue that isn’t receiving a lot of attention could very well be the GOP’s secret midterm weapon: President Trump’s dramatic reshaping of the judiciary.

Judicial appointments don’t receive much publicity and yet the actively move the political needled. According to exit polls from the 2016 presidential elections, seven in 10 voters said Supreme court appointments were either the most important factor or an important factor in their decision to support a candidate. Twenty-two percent said it was the most important factor, a threefold increase from 2008, when just 7 percent said it was the most important factor. These voters overwhelmingly broke for Donald Trump.

And he’s delivered.

President Trump’s appointment of Neil Gorsuch to the Supreme Court is rightfully touted as one of his main accomplishments. Justice Gorsuch has already proven himself to be an intellectual powerhouse who will capably carry on the legacy of the late Justice Antonin Scalia. And yet the power of that singular appointment has perhaps hidden a much more significant long-term accomplishment: Trump set the record for most federal appeals judges confirmed during the first year of a presidency.

All told, President Trump successfully appointed 12 federal appeals judges in his first year. By comparison, President Obama confirmed three and President George W. Bush confirmed six.

That’s a big deal. As Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Cal.) explains: “The Supreme Court hears between 100 and 150 cases each year out of the more than 7,000 it’s asked to review,” she said. “But in 2015 alone, more than 55,000 cases were filed in federal appeals courts. … In a way, circuit courts serve as the de facto Supreme Court to the vast majority of individuals who bring cases. They are the last word.”

In short, the federal appellate courts offer a tremendous opportunity for originalist principles to be imprinted on the judiciary for decades after Trump’s White House. But this opportunity was not luck, it was the product of a sustained effort over decades. The conservative cupboard, once completely bare of credentialed judicial conservatives, is now overflowing with highly-qualified, well-educated candidates in the mold of Justices Scalia, Thomas and Gorsuch.

But all the candidates in the world would not have mattered but for Sen. Harry Reid’s tactical blunder. Edward Whelan explains for National Review:

In November 2013, the Democratic majority leader pushed to repeal the filibuster for lower-court (and executive-branch) nominees. His success meant that a steadfast minority of 41 or more senators could no longer block a judicial nomination. So, when the president and the Senate are of the same party, the path to confirmation can be fairly certain and quick. Further, that promise of a smooth path encouraged high-quality conservatives — the very folks who might reasonably have feared a filibuster and been most reluctant to put their careers in indefinite limbo — to offer themselves as candidates.

While Reid let his short temper get the better of him, Sen. Mitch McConnell was waiting patiently for his opportunity, knowing that a graying bench would leave plenty of openings on the appellate courts. According to research from Russell Wheeler of the Brookings Institution, the median judge age has crept up to 66 (it was 59 under President Clinton) and the number of senior-eligible seat, a semiretirement that permits a successor’s appointment, has skyrocketed from 14 percent under George W. Bush to 44 percent today.

As soon as Trump was elected, McConnell seized the opportunity and began working with the White House to fill the court with young conservative judges. The plan has been working like clockwork, churning out nominees that even the New York Times admitted have “strong academic credentials and clerked for well-known conservative judges.” Part of the success lies in the simple fact that Republicans recognized the growing importance that the judiciary was playing in legislative matters. Too often, conservative policies were being stalled by activist courts, or worse, courts were assuming the legislative mantle and enacting policies that had never received a vote.

“The tax bill was hugely important, but as soon as the government changes, believe me, they’ll revisit the tax code,” McConnell tells TIME. “The impact that this Administration could have on the courts is the most long-lasting impact we could have.”

And it’s an opportunity they are not letting slip away.


Photo by MattWade, CC BY-SA 3.0.