Trump Sets Records for Seating Federal Judges

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends much of her time in Asia and is currently working on a book about textile artisans.

One year in, the Trump administration continues to set records for the discipline and efficiency with which it is seating federal judges– who have lifetime tenure, and will continue to serve long after the Donald is a bad memory.

As David Lat writes in Above the Law, the administration well understands that the success of advancing its agenda, in the longer term, depends in significant part on the composition of the federal judiciary. Trump cannot replace sitting judges, but he can make sure, going forward, that those who share a similar ideological approach, are ruling on his initiatives and those of his successors,

Many of President Trump’s initiatives might get stuck in Congress, struck down by courts, or undone by his successor — but his appointees to the federal bench, appointed for life, will be around for a long, long time (especially given the administration’s focus on youth  when selecting nominees).

Ranking Trump: Who’s Number One?

Trump places six out of 19 presidents (starting with William Howard Taft), in their federal judicial appointments during his first year in office, according to an analysis conducted by the Los Angeles Times in Trump appointing judges at rapid pace. That ranking actually understates his success. He’s successfully appointed twelve appellate court judges– the second highest since 1912 when the structure of the court system was reformed– installed Neil Gorsuch on the Supreme Court, and seated ten district court judges.

By comparison, his predecessor managed to see thirteen judges confirmed during his first year: one Supreme (Sonia Sotomayor), three appellate, and nine district– despite having a larger Democratic Senate majority (60) than the Republicans now enjoy (54).

Trivia buffs might note that John F. Kennedy holds the record in seeing the most federal judges seated during his first year in office– 78, split between 15 appellate judges and 63 district judges. That was possible due to 1961 legislation that authorized creation of new judgeships to reduce backlogs in the federal court system.

There’s much more damage left for Trump and Senate Republicans to do, with 145 vacancies and 43 nominations still pending. Last week, the Senate Judiciary Committee didn’t let the threat of impening government shutdown slow its work on judicial nominations, and approved 17 nominations,  including three appellate, according to the Washington Examiner. Each must be confirmed by the full Senate.

And as Lat notes, that confirmation may take some time to achieve:

When will we see floor votes for the SJC-approved nominees? It could take a while. As I previously explained, when discussing the sorry state of Justice Department nominations, the Senate Democrats are invoking procedural rules that require 30 hours of “debate” on every nominee. There’s often no actual debate, but this does require the passage of Senate floor time — so it could actually take weeks to get all 17 confirmed (despite Senate Majority Leader Mitch McConnell’s effort to prioritize and fast-track judicial nominations).

Could this change? Quite possibly. If Republicans get fed up with the slow progress, they could invoke the “nuclear option,” just as the Democrats did regarding the judicial filibuster, and abolish or amend the 30-hour rule by majority vote. I predict that changes will be made at some point, unless the Democrats relent; otherwise it will take years to get all of Trump’s nominees confirmed. (One possible reform, suggested by Senator James Lankford (R-Okla.), would reduce the required debate to two hours for district-court nominees, but leave the 30 hours in place for circuit-court nominees.)

So it appears that Senate Democrats may not have completely rolled over and allowed the Trump mission to proceed without opposition.  These efforts will surely continue, even though procedurally, Republicans– by virtue of their majority– have the upper hand.

“Quality” of Nominees

Now, to be sure, some of Trump’s nominees are no doubt unqualified, unprepared, barmy, or beyond the pale. As Dahlia Lithwick has written at Slate:

For 10 minutes in December, the public was agog at the spectacle of Sen. John Kennedy of Louisiana, in his grits ’n’ biscuits twang, shredding a Trump judicial pick to ribbons over his lack of courtroom experience. Kennedy’s evisceration of federal district court nominee Matthew Spencer Petersen was a good show, as shows go, serving to highlight the ways in which some of Trump’s judicial selections were unprepared, entitled, and rushed through the vetting process. Petersen withdrew his nomination not long after video of his abject performance went viral. The White House also pulled back two nominees: Jeff Mateer, who has referred to transgender children as a part of “Satan’s plan,” and 36-year-old Brett Talley, who has never tried a case and once defended the “original KKK.”

I don’t think it really matters much if nominees such as these are confirmed or not. Yet by defining them as the outside limit of acceptable candidates to be considered, the Trump team legitimizes the nomination of those whose judicial views are merely extreme– but who are well-credentialed and experienced, and capable of garnering a “highly qualified” rating from the American Bar Association. Ten of the twelve appellate judges confirmed thus far secured a highly qualified rating, another was deemed qualified and only one, not qualified, according to the LA Times.

On the Supremes, the right had its Antonin Scalia, followed by Neil Gorsuch.

Once again, as in so many other areas, establishment Democrats are not thinking broadly enough. This is no doubt a feature, not a bug, and is in response to who actually shapes the party’s agenda– its funders.

So when they have the choice, Democrats have tended to make safe, middle-of-the road appointments to the Supreme Court. The focus is on identity politics, rather than diversity of mindset or experience– as I’ve written before in Doing Time: Prison, Law Schools, and the Membership of the US Supreme Court. Potential justices are  largely business-friendly, lack much litigation experience, with sitting justices drawn exclusively from those who attended the same two law schools, Harvard and Yale. Democrats, when they’ve had the chance, haven’t hazarded the nomination of a modern analogue to Felix Frankfurter, William O. Douglas, or Thurgood Marshall, let alone a criminal defense attorney or a public interest litigator. Where are the public defenders? The environmental lawyers? Or,what the white shoe bar would no doubt regard with shock and horror, a leading plaintiffs’ attorney (e.g., member of the class action bar)? And allow me to go one step further, and cite no less an authority as (retired) Judge Richard Posner need federal judges– including Supreme Court justices– be lawyers at all? (I discussed this last issue further in Barriers to Entry: On Bar Exams and Supreme Court Seats).

Unfortunately, as this NPR segment, Trump’s Lifetime Judge Picks Leave Liberals Dismayed, makes clear, Trump opponents remain narrowly focussed on identity politics, rather than on ideological diversity, or on picking judges who have a wider spectrum of experience:

JOHNSON: But Democrats and civil rights advocates find plenty of reasons to be troubled, starting with diversity. Kristine Lucius is vice president at the Leadership Conference for Civil and Human Rights.

KRISTINE LUCIUS: More than 91 percent of them are white. And nearly 77 percent of them are men. You would imagine those numbers in a day where law schools were segregated o law schools didn’t admit women, but we have not been in that place for generations.

JOHNSON: Lucius says many of Trump’s selections for lifetime federal judge spots are hostile to gay and lesbian rights.

LUCIUS: Initially, I recall thinking that it maybe was a vetting problem, but I’ve come to believe it’s not a bug. It’s a feature.

JOHNSON: Conservative Ed Whalen points out Trump’s appointees to important appeals courts included three women and two Asian-Americans.

WHELAN: Every president selects, broadly speaking, from his base of supporters. It’s not news that President Trump’s base of supporters is less diverse racially, ethnically than President Obama’s.

Why It’s Important that Notions of Judicial Diversity Aren’t Limited to Identity Politics

Now, I happened to be on a longish flight recently, mulling some potential topics for some upcoming posts, while watching the movie Invictus. This tells the story of Nelson Mandela’s successful attempt, just after becoming president of  South Africa, to unite the country behind the quest for the national rugby team to win the 1995 Rugby World Cup. Until Mandela started his effort, that national team, the Springboks, was  regarded as a symbol of apartheid, and many black South Africans routinely rooted against the Bokke in its international contests. (Either you know this history or you don’t, so allow me to continue for those who do, and for those who don’t, click on this wikipedia link.)

Seeing that movie reminded me again some thoughts I first had during my only visit to South Africa, in 2003. There’s a major defect in the way the US selects federal judges. They’re nearly always drawn from the ranks of the haves, not the have nots. And they certainly don’t share the perspective of the underdog, or anyone who’s found him or herself on the wrong side of the law. This is something I wish those who style themselves as progressives or liberals might pay greater attention to, rather than merely focusing on  identity politics concerns, when potential judges are proposed.

Let me share what first inspired these thoughts. I can’t really improve on what I wrote about this topic in the post I cited above, so I’ll just quote from that here:

About a dozen years ago I was sitting in an auditorium in Cape Town listening to a panel discuss constitutional law issues in the new South Africa. One of the panellists, judge Dikgang Moseneke, was particularly impressive and I recall his somewhat unusual background– certainly unusual compared to that of any current justice of the US Supreme Court.

Moseneke joined the Pan-Africanist Congress when he was 14. One year later, he was arrested and subsequently convicted of participating in anti-apartheid activity. He served ten years as a prisoner on Robben Island. While in prison he completed various university degrees and would later earn a law degree. He subsequently pursued a glittering career as a practicing attorney, until his appointment to South Africa’s Constitutional Court– the highest in the land. He served there until his retirement in 2016.

Now I’ve not studied Moseneke’s judicial record in any detail. All I know is his wikipedia entry praises him for his “towering legal mind” and calls him “a most independent-minded and imaginative jurist”. But I remember thinking at the time that serving time as a prisoner would give him a breadth of experience to draw on as a judge that would certainly be impossible in an American context. Our system of judicial selection is well-designed to shut out anyone who has any experience being on the wrong side of the law. Or, for that matter, especially in recent years, with doing anything remotely controversial.

Bottom Line

Trump and his minions are marching full speed ahead in locking up lifetime-tenure Article III judgeships for ideologically compatible candidates.  There’s nothing unusual about this mission: He won the election, after all, many voted for him based on expectations of the judges he would appoint, and in fact, Hillary Clinton hammered the judicial appointment argument as a reason to vote for her instead. So no illusions here, on either side.

What I question is the focus Democrats have, when in power, on identity politics concerns, rather than embracing candidates with wider educational, personal, and professional experience.

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22 comments

  1. jawbone

    Yet again, the right must be thankful for the Obama presidency: For some reason, Obama simply did not seem prepared to name judges for what, iirc, were many open seats. For two years he had the votes, but waited until he didn’t have them…. What was up with that? I was baffled at the time, even though I felt he would name Good Corporatist judges because that was what he believed in.

    Perhaps The Big Stall part of an agreement with Wall Street big money (plus, Big PhRM, big corporate whatever) that he would get their support for the Dem nomination which, at that time, was almost tantamount to being elected president since Bush the Younger was considered The Worst Prezident Evah.

    Is there any way these far right ideologue judges can be removed? Impeachment?

    What a mess we’re in. Shudder.

    Reply
    1. Glen

      I think we would be kidding ourselves if do not acknowledge that Obama did exactly what he wanted to do.

      Our country lost it’s last best chance to change course. The .01% have won after a war started by Reagan.

      Reply
    2. Darius

      I remember in the first few weeks, reading that Rahm Emanuel said they wanted to hold off on judicial nominations because it wasn’t compatible with working with Republicans. Just one one of the things that showed from the outset that Obama was not our friend.

      Reply
  2. Duck1

    What one hears from time to time is that the D’s are the party that governs, while the R’s, party of chaos, waiting to strangle in bathtub. Yet, what a milquetoast bunch the D’s are when they have the votes. Meanwhile R’s charge back from disaster (Bush 2) and pick up the House, Senate, Executive, majority of state governments and immediately Trump is prepared to fill the Judicial. Guess the D’s flunked their civic lessons in HS about how governments run.

    Reply
  3. jgordon

    Thank you for this post. Ten years ago I touted The Revolution Will not be Telivised, the documentary about Hugo Chavez’s success in Venezuela (and the Evil Empire’s failed efforts to destroy him) as the model of what a positive left wing revolution could look like in America. Today it still serves as an example for what happens when the left takes over, though on a slightly longer time line, after the confiscated resources have run out. In fact, it was witnessing the recent rapid deterioration of Venezuala that finally pushed me over to seeing the wisdom of the right. For a certain kind of people observable reality has a way of changing opinions and apparently I am that sort.

    Speaking of South Africa, and this is another important illustration of lefty policy succes much like Venezuela, Libya, Baltimore and Chicago–it’s now gone from a first world state that once rivalled Europe for its quality of life–only 20 years ago–to a nigh failed-state shthole today (to use Trump’s eloquent and appropriate alleged terminology). There is nothing the left touches that it won’t ruin, despite all the good intentions and faux pro-social rhetoric it espouses.

    I’m thrilled that Trump is installing many young, right wing federal judges whatever their identity because it means that all the people I know and love around me today have at least a small chance of escaping the horror the left brings everywhere else it takes charge. Thank you again for brightening my day.

    Reply
    1. rd

      I think a lot of black South Africans didn’t view South Africa as a “first world state that rivaled Europe” 20-25 years ago given the very high levels of poverty at that time which have been reduced today. I think South Africa, similar to African-Americans in the US, are examples of how institutionalized racism in economic policies for a century or more lock in many economic issues that are difficult to correct in a short time. http://www.worldbank.org/en/country/southafrica/overview

      In the US, FHA redlining (combined with interstate construction) is a classic example of how racist economic policies quietly restructured American cities by creating all-white suburbs, especially north of the Mason-Dixon line. http://www.bostonfairhousing.org/timeline/1934-1968-FHA-Redlining.html

      Reply
    2. Hamford

      Jgordon have you recently undergone a paradigm shift? Im generally just a late night reader, not a commenter, but I hearkened back to a memorable thread from months ago:

      https://www.nakedcapitalism.com/2017/11/links-112217.html#comment-2890111

      Specifically:
      “I face systemic oppression from patriarchal institutions in myriad of ways, from being African American, a woman, a lesbian, and transgendered… ”

      But today:

      “I’m thrilled that Trump is installing many young, right wing federal judges whatever their identity . . .”

      Perhaps these are congruent comments and I am happy to learn otherwise.

      Reply
      1. Pespi

        It’s a troll pretending to be jgordon. It’s becoming a commonish tactic.

        South Africa was a nice place for one white class, an okay place for the working class whites, and a miserable place for the black and “colored” population. The example of South Africa doesn’t prove that the right wing dogwhistle “leftys” taking power causes chaos, it proves that allowing exploitative economies to remain as is will reproduce the same conditions, nevermind who’s in power, or the skin color of the millionaires.

        Venezuela is more of an example of how resilient people can be when economic war is waged against them, and members of the upper and middle class do everything in their power to sabotage the legally elected government.

        The US government has poisoned millions upon millions of gallons of drinking water to frack its enemies into submission, and yet Venezuela, Iran, and Russia are still standing.

        Apologies for feeding the trolls. Just wanted to correct the record

        Reply
      2. Matt

        I think he was being sarcastic.

        Don’t kid yourself, gordon. The only thing these judges will be protecting your from is clean water and air.

        Reply
    3. Norb

      A destroyed environment will not provide safe haven for your loved ones. While you might have the political institutions you cherish or find most reliable, current trends point to capitalist excesses poisoning the entire world in short order- in hundreds of years at the latest. Maybe you can also envision a mass die-off of the current human population in order to secure a place for your decedents. By definition, the survivors would be the chosen people. But what type of world will they inherit. A polluted wasteland seems on order.

      What do you mean by the Left? The left has been utterly defeated and only scattered remnants remain in the form of a faith that a better world is possible. Capitalism rules the world. China and Russia are capitalist countries. Libya was destroyed by capitalist countries to eliminate competition. American empire and hegemony are failing. The multipolar world that is emerging will be a contest between capitalist blocks fighting it out for scarce resources.

      China, Russia, and the EU forming a peaceful trading block on the Eurasian continent to ensure their longterm survival is a definite possibility. Seems like a positive, longterm capitalist goal. China is leading in solar infrastructure and Germany has renounced nuclear power and is committed to renewables in the future. The EU is leading in environmental standards, regardless of American Corporate pressure. Russia has survived various political pressures and is committed to becoming a more self reliant nation. They could supply all the needed fuel for the Eurasian continent.

      American plans for a positive future is to retreat into a fictitious past. That does not bode well for world leadership and it shows in American failing influence around the world.

      While the Left’s traditional goals of Communism and Socialism are as Utopian as ever, the lie to the equally Utopian vision of Neoliberalism is just painful to watch and experience. Neoliberalism is a mining operation unconcerned with the long term health of society or humankind in general. Neoliberalism is an American invention to combat the ideology of socialism and communism. It is a strategy to rule the world and hold power. It is failing and that failure is blamed on left, as if resistance to exploitation alone is a crime.

      One way or another, cooperation is the key to survival. Everything in Trumpism and the hard Right point in the opposite direction. The cynical use of public bailouts is a case in point. Privatize the gain and socialize the loss is a dead end strategy. Even on a strictly capitalist standpoint this view is a looser. Cooperating blocks will always defeat ones in discord. American foreign policy seems intent on sowing discord. It seems designed to appeal to the worst in human nature.

      Capitalist confrontation cannot be solved by war. Everyone looses in a war. America is destine to be isolationist once again. This will be brought about by incompetence as the world refuses to follow the US. A weakened US will afford the rest of the world to choose its own path. Gun Boat diplomacy has reached a dead end.

      The horror of the Left indeed.

      Reply
      1. integer

        jgordon hasn’t commented much here for a while but he’s been part of the commentariat before. To my mind, he is noteworthy for having predicted the occurence of vehicle-based terror attacks before it was a thing, although he pointed it out in a fairly subtle way, which I expect was done in order to make sure he didn’t give anyone any ideas.

        Reply
  4. olga

    This only confirms that – under all the smoke-and-mirror show – there is method to the madness. Albeit one that may cost the country dearly…

    Reply
  5. Whoa Molly!

    Comparing Trumps effectiveness with that of his predecessor is a lesson in how much his predecessor either a) screwed the people who voted for him or b) was completely politically incompetent, or c) was in the tank for the right all along.

    Reply
  6. Bernard

    The Republicans aim for the heart and shoot until they hit the heart. This is all part of the plan. and No Republican would ever question what needs to be done, lest they get kicked out of the club. Rules are rules, or you become a Democrat, who sells out for the going rate.Control is methodical and has been accumulating steadily. the Powell Memo came out and publicly let us know what America and the World was in for.

    To watch my local Senator make excuses for Trump’s judges and the whole circus, well, this is a family blog and he doesn’t give a damn about anyone but himself and fellow rancid Republicans and most Democrats. He’s in the club, and i’m not. lol.

    they said the takeover would take time, and come piece by piece, and it has been steadily gaining pace, just like the last 4 hottest years on record. the Earth heating up, are we competing with the planet Venus? their pillage and burn /Libya/Iran/Yemen/Iraq used on overseas peoples coming home to us now.

    this era is just like the prelude to WW2, an Americanized version of Weimar. power has corrupted Washington, and wont stop until it takes everything down with it as it crashes. Stupid the Republicans are not. after all War is highly profitable. Otherwise Republicans wouldn’t be interested, the Money/Power Profits over people.

    War is a con, a highly successful business.

    After 40 years, the con Austerity has been exposed as anti social, anti community and anti life/clean air and clean water/land. that new “morning” St. Reagan spoke of turned into a period of “mourning.” for Life.

    Reply
  7. MayDaze

    By comparison, his predecessor managed to see thirteen judges confirmed: one Supreme (Sonia Sotomayor), three appellate, and nine district– despite having a larger Democratic Senate majority (60) than the Republicans now enjoy (54).

    Obama also appointed Elena Kagan to the Supreme Court in 2010.

    Reply
    1. Jerri-Lynn Scofield Post author

      Sorry, thought it was clear that the comparison was for each President after one year in office, not over his whole term. I’ve added text to emphasize that point.

      Reply

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