Even if Donald Trump gets voted out of office in November (and actually leaves), Trump-appointed judges with lifetime seats on the federal bench have already dramatically changed the face of our courts in Donald Trump’s image on a whole range of issues.
The effects of the relentless push by Senate Leader Mitch McConnell to pack the courts with Trump’s picks is being directly felt in rulings to restrict voting rights and curtail immigration. Even if Joe Biden wins the presidency, his policies and legislative remedies will face legal challenges that before Trump took over the courts would have been tossed out.
Trump boasted during last week’s debate that he appointed approximately 300 federal judges plus a third Supreme Court nominee ready to go, a stellar record that he says President Obama, and Biden, made possible by leaving behind 128 vacancies. “When you leave office, you don’t leave any judges,” Trump said, implying Obama and Biden were slackers.
First the numbers: By the end of October, if all goes to plan and the outbreak of coronavirus in the White House doesn’t engulf the Senate, Trump will add another 10 judges, including a possible third Supreme Court justice, to boost his overall total to 228, well short of 300 but more than any other president since Jimmy Carter 40 years ago.
Those judicial vacancies Obama and Biden failed to fill? There were 105 (not 128), plus one Supreme Court seat that McConnell saved for Trump after refusing to even grant a hearing to Merrick Garland, Obama’s nominee. McConnell’s obstruction gave Trump his judicial bounty, and Trump’s judges are well along to remaking America’s judiciary.
One chilling case in point: last month’s 11th Circuit ruling that convicted felons in Florida who have served their time and paid their debt to society cannot have their voting rights restored until they pay every last dollar of the fines and fees they owe. Five Trump-appointed judges made the difference in that opinion to deny the vote to hundreds of thousands of Floridians in a move that reeks of a modern-day poll tax.
“These are Trump nominees doing all they can to help Donald Trump win the state of Florida,” says Dan Goldberg with the Alliance for Justice Action Committee. “Putting politics aside, what does it say about our democracy that there’s this concerted effort not just in Florida but around the country to make it nearly impossible for otherwise eligible voters to exercise their right to vote and have a say in who governs?”
Nearly two-thirds of the Florida electorate in 2018 voted to amend the state constitution and allow felons who’ve served their time to vote. There are some 1.4 million felons in Florida, and the GOP-controlled legislature, apparently fearing too many might vote Democratic, passed a law conditioning the right to vote on full payment of all costs associated with their confinement. Initial rulings called this requirement unconstitutional, especially with the state saying that this information was not easily accessible—some felons were convicted years or decades ago, some in other states, and so on—and that creating a system to track it would take six years.
Even so, says Goldberg, the 11th Circuit is using “creative judicial reasoning... that forcing individuals to pay fees and fines is somehow not a poll tax.” The judge who wrote the opinion, William Pryor, has been on Trump’s Supreme Court shortlist. He was joined in the majority ruling by four judges appointed by Trump, three of whom are also on Trump’s burgeoning Supreme Court list.
Republican-appointed judges are now a majority on the 2nd, 3rd, 5th, 6th, 7th, 8th, and 11th circuits. The 2nd, 3rd, and 11th circuits shifted under Trump from Democratic majorities to Republican.
A Trump judge, Ryan Nelson, supported by the Federalist Society and confirmed in 2018 by a bare Senate majority of 51 votes, made the difference in an immigration-related ruling Sept. 14 that upheld Trump’s order to deport immigrants from Central America, Haiti, and Sudan who are in the United States, some for decades, on Temporary Protected Status (TPS). Elizabeth Warren tweeted, “I’m deeply disappointed by the 9th Circuit decision to end TPS for over 300,000 immigrants. These families are part of the fabric of our communities & economy. Many have been our essential workers during this pandemic. Ending protections for them now is just plain cruel.”
Citing the Florida decision and the TPS decision, Elliot Mincberg with People for the American Way told the Daily Beast, “It’s absolutely true that the large number of Trump appointees, most of whom are very young, will be with us for a very long time and will be writing opinions and casting votes that will be very hard to overcome.”
He notes that Trump appointees tend to defer to presidential and executive authority, which is one of the reasons they caught Trump’s attention in the first place, and why they’re on Trump’s Supreme Court list. “Will they continue to do that if power changes?” Mincberg asks. “If they’re intellectually consistent, they should.”
He cites as an example Nomi Rao, 47, who replaced Brett Kavanaugh on the D.C. District Court in 2019 after he joined the Supreme Court. She had worked in the Trump White House as the “regulatory czar” before Trump nominated her for the court. She is down-the-line hard-core for Trump and was the only dissenter on a three-judge panel earlier this year that ruled for House Democrats seeking access to the grand jury material that Robert Mueller compiled for his report on Russian collusion.
If Biden wins, we will know soon enough how Rao and others adapt to a change in power. “Who knows, maybe she just believes in executive power,” Mincberg says with an edge of sarcasm that conveys his disbelief that Trump’s judges will transfer their fealty to executive power to a Democratic president.
Last month, on Sept. 9, Trump announced an additional 20 potential Supreme Court nominees, building on the strategy he used in 2016 of floating names to assure his base of conservative voters what they would get if they elected him. He included three senators (Ted Cruz, Tom Cotton, and Josh Hawley), saying he would appoint judges in the mold of the late Justice Antonin Scalia and Justices Clarence Thomas and Samuel Alito, the most conservative members of the court.
He pointedly did not cite the two justices he put on the court, Justices Gorsuch and Kavanaugh, who have not gone the way he wanted on a few key decisions.
Ten days after Trump released his wish list, Ruth Bader Ginsburg died, leaving behind a prized vacancy that if filled by Trump will cement a 6-to-3 conservative supermajority on the Supreme Court for decades to come. Just eight days after Ginsburg’s death on Sept. 18, Trump introduced Amy Coney Barrett, 48, in a Rose Garden ceremony, making clear his intention to win Senate confirmation before the election.
No previous nominee has won confirmation this close to an election, when people have already begun voting. The revelation early Friday morning that President Trump tested positive for the coronavirus raised questions on Capitol Hill about whether the Senate could meet the tight deadline Trump and McConnell want. One member of the Judiciary committee, Utah Senator Mike Lee, announced Friday that he has also tested positive.
The judicial branch likes to think of itself as above politics, but Trump has put an end to that fiction. And he’s not alone, dating back to at least 2000 and the Bush v. Gore Supreme Court decision, it has been obvious the courts are subject to and reflect the same partisan divide as the other two branches of government.