As the Supreme Court wrapped up its term for the summer, the country experienced a stunning reminder of the impact of Trump’s judicial appointments. Every 5-4 split with the conservative bloc in the majority was a direct result of Mitch McConnell’s theft of a Supreme Court seat that enabled Trump to fill two vacancies, shifting the Court’s majority from moderate to radically conservative. Trump’s capture of the Court was made possible by the Republican five decade push to make the Court a tool for implementation of the Republican Party agenda. When Trump arrived in power, the table was set for him to appoint justices who would further Republican ends.
The table was also set for Trump to remake the lower federal courts. The conservative legal infrastructure that allowed Trump to identify and nominate scores of conservative judicial nominees had been in the works since the 1970’s. As I wrote previously in this blog:
“Republican presidents from Nixon through Trump have campaigned on their intentions to appoint ideological conservatives to the judiciary. They have turned this promise into a central building block of electoral success. They have now succeeded beyond even the wildest dreams of soon-to-be-Justice Lewis Powell, who urged the U.S. Chamber of Commerce to weaponize the courts in the service of business interests. They have fulfilled the fantasies of angry conservatives intent on undermining rulings in favor of civil rights and women’s choice. They have enshrined the Federalist Society as the party’s judge and justice picker. A complicit Senate has confirmed a steady stream of judges and justices who support the Republican political agenda of restricted government regarding protection of the environment, consumers, labor, healthcare, voting rights, civil liberties and civil rights, but big government when it comes to promoting religion.”
This Republican success has occurred because the Party made judicial selection a top electoral priority and followed through in its implementation. That follow through was possible only because conservative legal activists had created a network for identifying and developing reliably conservative judicial nominees. The network centers around the Federalist Society, which became the incubator and filter for nearly all of Trump’s nominees. Indeed, the Trump administration has been transparent about its heavy reliance on the Federalist Society and in particular Leonard Leo, its head, to feed nominees to the White House.
This system has been hugely successful. According to the most recent Alliance for Justice statistics, Trump has already appointed 144 judges, including 43 Court of Appeals judges, a pace that dwarfs his predecessors’. Mitch McConnell – uninterested in passing legislation — has happily turned the Senate into a conveyor belt for judicial confirmations. Republican chairs of the Senate Judiciary Committee have discarded the blue slip system, which once allowed home state senators to block nominees by withholding or returning a negative blue slip. And McConnell has forced through rules changes that have truncated the time needed to confirm judges on the Senate floor. All of this has produced the confirmation of an alarming number of professionally unqualified and ideologically radical judges.
By contrast, President Obama, following Democratic tradition, famously downplayed the importance of confirming judges, preferring instead to push for progress through the political branches. As a result, his administration was slow off the mark in getting names to the Senate during his first years when Democrats held a large majority in the Senate. Only after Harry Reid reformed the filibuster in 2013 did confirmation of Obama nominees accelerate. After Republicans won control of the Senate in 2014, however, Mitch McConnell slammed the brakes on judicial confirmations.
Democrats cannot allow the same thing to happen if they win the White House in 2020. It is imperative that the incoming administration gets to work on its first day to fill critical federal judgeships. Progressive lawyers must start the process now of identifying candidates for vacancies that the next president is likely to face. While the strength of the progressive community traditionally has been grounded in its breadth, diversity and independence, this effort will require a high degree of cooperation. The progressive community should not and will not emulate the lockstep dominance of the Federalist Society, but it must recognize the extraordinary need to work together to fill the progressive judicial pipeline.
That effort must be complemented by a new Senate majority that will confirm qualified nominees and by reform of the Supreme Court to redress the damage done by the Republican crusade to make the Court a third political branch of government.
The Alliance for Justice’s recently announced Building the Bench initiative is designed to address this need by working with a large coalition of individuals and groups, including the American Constitution Society, which helps acquaint early-career lawyers and law students with the goal of pursuing a judicial career. The project will focus on creating a pool of potential judicial candidates who can begin to correct the dramatic Trump tilt of the judiciary. It will seek professionally accomplished candidates from diverse backgrounds that extend beyond the usual big law and prosecutorial roots of too many judges. And the initiative must begin now, if we are to preserve our courts as defenders of our constitutional values.