WASHINGTON (AP) — On this, even President Donald Trump’s most fevered critics agree: He has left an imprint on federal courts that will outlast his one term in office for decades to come.
He used the promise of conservative judicial appointments to win over Republican skeptics as a candidate. Then as president, he relied on conservative legal organizations and Senate Majority Leader Mitch McConnell to employ an assembly line-like precision to install more than 230 judges on the federal bench, including the three newest justices of the Supreme Court.
Indeed, undeterred by Democratic criticism, the Senate was still confirming judges more than a month after Trump lost his reelection bid to Joe Biden.
“Trump has basically done more than any president has done in a single term since (President Jimmy) Carter to put his stamp on the judiciary,” said Jonathan Adler, a law professor at Case Western Reserve University School of Law in Cleveland. Congress created about 150 new judgeships during Carter’s presidency, he said.
In this Monday, Oct. 26, 2020 file photo, President Donald Trump and Amy Coney Barrett stand on the Blue Room Balcony after Supreme Court Justice Clarence Thomas administered the Constitutional Oath to her on the South Lawn of the White House in Washington. President Donald Trump’s deep imprint on the federal courts is a rare point of agreement about the president across the political spectrum. With a major assist from Senate Majority Leader Mitch McConnell, Trump and his White House staff relentlessly, almost robotically, filled nearly every opening in the federal judiciary, undeterred by Democratic criticism. (AP Photo/Patrick Semansky, File)
Patrick Semansky / AP
The impact will be enduring. Among the Trump-appointed judges, who hold lifetime positions, several are still in their 30s. The three Supreme Court picks could still be on the court at the 21st century’s midpoint, 30 years from now.
Beyond the Supreme Court, 30% of the judges on the nation’s court of appeals, where all but a handful of cases reach their end, were appointed by Trump.
Judges who have Trump to thank for their positions nevertheless rebuffed the president's legal challenges of his election defeat. But the real measure of what Trump has been able to do will be revealed in countless court decisions in the years to come on abortion, guns, religious rights and a host of other culture wars issues.
When the Supreme Court blocked New York from enforcing certain limits on attendance at churches and synagogues in areas designated as hard hit by COVID-19, Justice Amy Coney Barrett, the newest member of the court, cast the decisive fifth vote. Previously, the court had allowed restrictions on religious services over the dissent of four justices, including the other two Trump nominees, Neil Gorsuch and Brett Kavanaugh.
Five Trump appointees were in the majority of the 6-4 decision by the 11th U.S. Circuit Court of Appeals in September that made it harder for felons in Florida to regain the right to vote.
Last month, Judges Britt Grant and Barbara Lagoa, both named by Trump, formed the majority on a three-judge 11th circuit panel that struck down local Florida bans on therapy that seeks to change the sexual orientation of LGBTQ minors. Other appeals courts around the country have upheld the conversion therapy bans.
In one early look at Trump’s appointees to federal trial courts, political science professors Kenneth Manning, Robert Carp and Lisa Holmes compared their decisions with more than 117,000 opinions published dating to 1932.
The decisions of judges appointed by Trump were "on the whole, significantly more conservative” than those of past presidents, the political scientists concluded.
The one constant of the past four years — through impeachment, the coronavirus pandemic and Trump’s election loss — has been his nomination of and Senate confirmation of judges.
Trump used the issue of the federal judiciary to win trust with voters who might have questions about the conservative credentials of a billionaire real estate developer who had once supported abortion rights and had no track record in politics.
He put in writing a list of potential nominees, provided by the conservative Federalist Society and Heritage Foundation, he would select from in filling a Supreme Court vacancy.
As it happens, there was a high court opening at the time, following the death of Justice Antonin Scalia in February.
Enter McConnell. The Republican blocked President Barack Obama’s nomination of Merrick Garland, refusing so much as a hearing for the respected appeals court judge whom Republicans had previously identified as a high court nominee they could support.
And the high court seat wasn’t the only one waiting to be filled when Trump took office in January 2017. Altogether, 104 judgeships were open after Republicans used their Senate majority to grind the nomination process to a near halt in Obama’s final two years in office.
Sen. Sheldon Whitehouse of Rhode Island, a Democrat on the Senate Judiciary Committee and a sharp Trump critic, said Trump’s judicial legacy “is a lot less about what he’s done than what he’s allowed others to do in his name.’’
Whitehouse said Trump essentially “outsourced” judicial nominations to McConnell and the Federalist Society, specifically the group’s leader Leonard Leo and former White House counsel Don McGahn.
At the same time, the Federalist Society and other conservative groups, including the Judicial Crisis Network and Americans for Prosperity, have taken millions of dollars in anonymous donations and waged public and behind-the-scenes campaigns for right-wing judges, Whitehouse said.
“That, I think, is very novel and obviously lends itself to corruption," Whitehouse said.
McConnell scoffed at the criticism. “The reason a lot of them belong to the Federalist Society is because that is sort of the core mission of the Federalist Society — to get the courts back to doing what they’re supposed to do and not legislate from the bench,” McConnell said in an interview.
On the campaign trail and at White House events, Trump never tired of boasting about his judicial appointments, omitting the essential fact that McConnell had blocked Obama nominees.
“You know, when I got in, we had over 100 federal judges that weren’t appointed,” he said. “Now, I don’t know why Obama left that. It was like a big, beautiful present to all of us. Why the hell did he leave that? Maybe he got complacent.”
Biden promises to undo much else of Trump's actions in office. But Americans “will be living with the legacy of Donald Trump for decades to come as a result of his judicial appointments,’’ said Brian Fallon, executive director of Demand Justice, a liberal advocacy group.
“I think it’s far and away the most consequential thing I’ve ever been involved in,’’ the 78-year-old McConnell said. “And it’s the most long-lasting accomplishment of the current administration, by far.’’
