Trump’s Court Redo Is Set to Be Even Broader If He Wins New Term

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President Donald Trump has reshaped the federal judiciary. If he wins another four years, he could transform it entirely.

Trump heads into next week’s Republican National Convention able to boast of having installed more than 200 judges, including 53 on the U.S. appeals courts and two Supreme Court justices. Republican appointees now constitute a majority of the full-time judges on seven of the 13 federal appeals courts, up from four when Trump took office in 2017.

But those achievements could pale in comparison to the impact of a second Trump term, at least if Republicans also maintain control of the Senate.

With four Supreme Court justices 70 years or older -- including five-time cancer patient Ruth Bader Ginsburg, 87, and Stephen Breyer, 82 -- Trump almost certainly would have another vacancy to fill, potentially making the court far more conservative on abortion, federal regulatory power and gun rights.

Trump’s Court Redo Is Set to Be Even Broader If He Wins New Term

And Trump could flip most of the appeals courts that still have Democratic-appointed majorities, including two that have blocked some of his biggest initiatives.

“You’ll see a judiciary dominated by strongly conservative court of appeals judges appointed principally for their ideology” if Republicans control the White House and Senate, said Russell Wheeler, a Brookings Institution scholar who studies judicial nominations and confirmations.

Every Vacancy

Much as he did four years ago, Trump is trying to rally his political base by pointing to the lifetime appointments he could make to the courts.

“The most important thing a president can do is the appointment of federal judges and Supreme Court justices,” Trump said this week at an event in Yuma, Arizona. “When it comes to Second Amendment, when it comes to life, when it comes to a lot of things that you people live for, if you don’t have the Supreme Court and if you don’t have the courts in your side, you can forget it.”

Democrats, by contrast, all but ignored the subject of court
appointments during the four days of their convention. Former Vice President Joe Biden didn’t mention the judiciary in his speech to accept the party’s nomination Thursday night.

With the help of Senate Majority Leader Mitch McConnell, Trump has filled every federal appeals court vacancy during his presidential term. The vast majority of nominees have sailed through the Senate, where Republicans are in control by a 53-47 margin.

Trump’s 53 appeals court appointments at this point in his presidential term are second only to President Jimmy Carter’s 57, though that group represented 40% of the appellate seats that were in place at the time, compared to 30% for Trump, according to Wheeler. None of Trump’s 53 are Black, only one is Hispanic, and only 11 are women.

Aging Liberals

The judiciary has “already been shaped by three-plus years of just a tremendous amount of appointees,” said Tara Leigh Grove, a professor who teaches at the University of Alabama School of Law and focuses on federal courts. “And it’s going to be in that shape for a couple of decades.”

Although Trump may not have as many appeals court openings in a second term, the impact could be at least as great because liberals constitute an outsize percentage of the country’s oldest appellate judges. Federal judges can create a new vacancy by dying, retiring or taking semi-retired senior status.

Two courts that have been among Trump’s biggest foils, the San Francisco-based 9th U.S. Circuit Court of Appeals and the D.C. Circuit in Washington, are nearing tipping points. The 9th Circuit, which has repeatedly ruled against Trump on immigration and border issues, has six full-time Democratic-appointed judges who are at least 70.

The 9th Circuit has already been reshaped by the arrival of 10 Trump-appointed judges. Once a liberal bastion, it now has 16 judges nominated by Democratic presidents and 13 named by Republicans.

The D.C. Circuit, which ruled against Trump’s efforts to keep his financial records secret and rescind the DACA deferred-deportation program, has two Democratic appointed justices at least in their late 70s. Seven of the court’s 11 full-time judges are Democratic appointees.

Ginsburg’s Cancer

“There’s a lot of Democrats, I think, who have been holding off talking senior status so as not to give Trump a vacancy,” Wheeler said. Many, he predicted, “will yield to the ravages of time and age and say, ‘Well, I held out for four years, but I can’t hold out for eight.’”

How much impact Trump has will depend heavily on the election fight for the Senate. Should Democrats recapture the chamber, they could block any or all of Trump’s court selections, much like Senate Republicans did when President Barack Obama nominated Merrick Garland to fill a Supreme Court vacancy in 2016.

“If the Senate majority is controlled by Democrats, they would have the ability to do the same,” said Amy Steigerwalt, a political science professor who studies the federal judicial selection process at Georgia State University. She said Democrats also would be able to influence who Trump nominates, forcing him to consult with members of the opposing party. “It would change the entire process, really.”

As for the Supreme Court, Trump could become the first president to appoint more than two justices since Ronald Reagan in the 1980s. In addition to Ginsburg and Breyer, conservative Justices Clarence Thomas, 72, and Samuel Alito, 70, would also be candidates to retire during a second Trump term.

Grove said the Supreme Court over the years has repeatedly defied predictions of a dramatic legal shift -- a point the court underscored in its most recent term. Despite the presence of two Trump appointees, the high court rejected the president’s position in cases involving DACA, abortion, and anti-LGBT job discrimination.

“People have predicted this for a very long time in the U.S. Supreme Court, and it hasn’t happened that there was a major change,” Grove said. But, she added, “maybe this would be the moment, finally.”

©2020 Bloomberg L.P.

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