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.
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.