The White House is rushing to appoint as many judges as possible before 2020 to give President Donald Trump yet another talking point he can rally on as he stumps for re-election.
Trump’s team believes that stacking the judicial system with conservative judges galvanizes the base, demonstrates his ability to follow through on a 2016 campaign promise and will help win over crucial 2020 states like Colorado, Florida and North Carolina. And Trump himself is convinced that judicial appointments are central to both his legacy and policy agenda, as he has pushed for young judges who can serve for decades, according to former administration aides, close White House advisersand those familiar with the administration’s judicial plans.
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Senate Majority Leader Mitch McConnell (R-Ky.) has done everything he can to help quicken the pace, changing procedural rules to limit debate time and lower the voting threshold Supreme Court justices must clear to get approved. In just the last six weeks, the Senate will have confirmed 15 judges, aided by a recent debate-limiting tweak.
“Obviously that’s going to be one of the most lasting legacies of the Trump administration and the next 25 to 30 years,” said Republican Sen. John Cornyn, a member of the Senate Judiciary Committee. “I think it’ll remain a priority especially when our Democratic colleagues don’t seem too interested in legislating, particularly in the House.”
“President Trump totally gets it from the standpoint that is a transactional item needed to win support from the base,” said one close White House adviser.
Already the Senate has confirmed more than 100 of the president’s nominees to the federal bench, including two Supreme Court Justices and 40 circuit court judges. Outside conservative groups and donors want the pace to move as quickly as possible.
It’s a troubling situation to left-leaning strategists who say the Trump administration and Senate leadership has broken tradition with both their selection of judges and the process of confirming them.
“I am not sure how they can speed it up anymore,” said Daniel Goldberg, legal director at the left-leaning Alliance for Justice. “Mitch McConnell has already eroded almost every rule and norm to expedite Trump’s far-right judges with as little transparency and vetting as possible.”
In addition to youth, Trump and his team look for potential judges who have Ivy League credentials or clerkships with high-profile judges or justices, according to a former administration official. The president also often talks about the importance of judges “not being weak,” said one individual familiar with the White House’s judicial selection process.
While Trump himself is not personally involved in the selection of judges for the lower courts, he was heavily invested in the administration’s Supreme Court picks, according to former administration officials and individuals familiar with the White House process. Trump personally interviewed and chose both Justices Neil Gorsuch and Brett Kavanaugh.
“The passing of Justice Scalia sharpened his mind and caused him to think more systematically about the role of the courts and the importance of those issues to conservatives,” said the individual familiar with the White House’s process. “He saw the way people reacted to the issue and saw it as an important way of building a strong political coalition.”
Kavanaugh’s confirmation process, while fraught because of the sexual assault allegation, showed the White House how the conservative base rallies around judicial picks. The fight brought together deep-pocketed groups including the Federalist Society, the Koch-backed Americans for Prosperity, Judicial Crisis Network, Concerned Women for America and Susan B. Anthony List, among others.
“Americans have grown tired of a federal government that doesn’t listen to their concerns, and a judiciary which has too frequently ignored the will of the people expressed through their elected representatives,” said Tim Murtaugh, director of communications for the Trump campaign. “By appointing judges who interpret — and not make — law, he is giving voice to citizens who were frustrated by judges who imposed their political opinions on the people.”
In 2016, 56 percent Trump voters listed the issue of Supreme Court appointments as the most important factor in their support for his candidacy while just 41 percent of voters for Democratic candidate Hillary Clinton deemed it the most important issue. By contrast, 49 percent of Democratic voters characterized it as a significant factor but not the deciding one, according toexit polling.
The push to speed up nominees has dovetailed with McConnell prioritizing the confirmation of judicial and executive branch nominees. That’s sparked criticism from Senate Democrats who say he’s turned the Senate into a “legislative graveyard.” But with a divided Congress, the odds of getting any major legislation done this session are low.
The speed of judicial confirmations has increased since McConnell triggered the “nuclear option,” a move that limited debate time on most Trump nominees. The change in debate time applies to lower-level district court judges but does not apply to Supreme Court or circuit court judges, where appeals occur.
While senators are spending most of their days confirming judges, aides to McConnell say that that they’re not on any specific deadline and are merely trying to get as many judges confirmed as possible by the end of the 116th Congress.
Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, a conservative legal group, said that while the rule changes has helped confirmations, Democrats are still trying to slow-walk nominees.
“It’s a great idea to get it done by January because things do get busy during a presidential year,” Severino said. “But even if it were the first year of your presidency, there’s a need to move on these positions. We have 150 some vacancies on the federal courts. That’s a significant number.”
The only other recent presidents who confirmed more judges than Trump by this time in the third year of the presidency were Presidents George W. Bush and Bill Clinton, according to ajudicial trackermaintained by the Heritage Foundation which tracks judicial nominations and confirmations going back to President Ronald Reagan.
So far, the administration has focused much more on circuit court judges than district court ones, since the appeals courts cover larger geographical swathes of the country.
“Given how few cases the Supreme Court takes, the appeals court are making a ton of important decisions in which they are the last word,” says Rorie Solberg, a professor of political science at Oregon State University whose research focused on judicial politics.
Trump’s critics say the president’s team is tapping a slew of overly partisan nominees who are being crammed through the Senate too quickly. Progressives’ complain that the Senate held nomination hearings last October during a congressional recess before the midterm elections, when senators were not in Washington, D.C.
Republican leaders also pushed through judges over the objections of senators from the state in which the judge will serve, breaking with long-standing Senate tradition, according to Goldberg.
But while it’s true that McConnell has altered and tweaked the Senate rules, every action he’s taken is above-board, according to Solberg — and available to future leaders.
“McConnell is using the tools that haven’t been used that way before, but it has always been available. He is just willing to defect from the norms sufficiently because the short-term gain to them is worth the risk,” Solberg said.
“When the Democrats take over, they will use the same rules and use all of the norms the Republicans broke,” she added. “No one is going to be able to recover that.”