Trump’s judges
“No president in recent memory has done more to change the judiciary than Donald Trump.”
So said Ian Millhiser, a dedicated left-wing writer for the dedicated left-wing website Vox. Millhiser grudgingly admitted that “in less than three years as president, President Trump has done nearly as much to shape the courts as President Obama did in eight years.”
Surprisingly, Millhiser acknowledges not only the quantity but also the quality of Trump’s nominations.
In addition to his two well-publicized nominations to the Supreme Court, Trump has nominated 133 federal district court judges and 50 appeals court judges in three years, one-third of all active appeals court judges.
In comparison, Obama nominated 55 appeals court judges during his eight years in office. Other presidents filled fewer appellate court seats during their first three years: George W. Bush filled 30, Clinton filled 27, George H.W. Bush filled 31, and Reagan filled 23.
Most of us are well aware of the importance of Supreme Court justices and the high-profile cases they decide. But in fact, the country’s 13 courts of appeal are where the great bulk of case law is decided.
Emphasizing the importance of appeals courts, Supreme Court Justice Sonia Sotomayor said in a candid moment while she was still a lower court judge, “The court of appeals is where policy is made.”
The big surprise comes in the quality of Trump’s nominees. Millhiser explains that Trump’s picks “include leading academics, Supreme Court litigators, and already prominent judges who now enjoy even more power within the judiciary.”
He explains: “Approximately 40 percent of Trump’s appellate nominees clerked for a Supreme Court justice, and about 80 percent clerked on a federal court of appeals. That compares to less than a quarter of Obama’s nominees who clerked on the Supreme Court, and less than half with a federal appellate clerkship.”
On the left-wing website ThinkProgress, Millhiser offers a surprising comparison: “After two full terms in office, you can count the number of Obama-appointed courts of appeals judges who could plausibly be a Supreme Court nominee on both hands. Trump’s already nominated nearly as many.”
To Millhiser’s frustration, Trump’s appointees have “far more impressive resumes than any past president’s nominees.” Even worse from his progressive point of view, “The average age of circuit judges appointed by President Trump is less than 50 years old – a full 10 years younger than the average age of President Obama’s circuit nominees.”
All this is music to the ears of those whose votes for Trump were predicated solely on his likely Supreme Court picks. The comparably important appeals and district court judges are frosting on the cake.
Trump doesn’t appoint judges; he nominates them and the Senate confirms them. An equal share of the credit goes to Senate Republicans led by Majority Leader Mitch McConnell.
In turn, Republicans owe more than a tip of the hat to former majority leader Democrat Harry Reid. Frustrated by the Senate’s filibuster, Reid led his then-majority in changing Senate rules to allow a simple majority to confirm judges.
With the door opened, Republicans have driven through. This emerging Trump-McConnell judiciary is Reid’s most lasting accomplishment.
For decades, progressives have seen the courts as mini-legislatures. When they can’t enact their preferred legislation, they turn to the courts, seeking out like-minded judges. Those judges in turn fall all over themselves looking for novel interpretations of existing laws that allow them to impose progressive policies on the public.
At the pinnacle of this process is the concept of a “living Constitution” where its meaning is constantly revised to enable the latest progressive fad. I’ve called this process “Making It Up as They Go Along” in a previous column.
I welcome an era in which judges interpret the Constitution and the law as written. Courts should turn to the legislative record to determine what legislatures intended when laws were drafted.
If Democrats find those laws outdated or in need of revision, their attention should be focused on winning elections and not on the federal judiciary.
The viewpoints expressed above are those of the author and do not necessarily reflect those of The Independent.
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