The overall numbers are damning for Democrats. President Trump has confirmed 200 judges, including 53 to the critically important appeals court, the most for any president in a single term since Jimmy Carter in the 1970s.
President Obama confirmed 55 appeals court judges, two more than Trump and including nine African-Americans, but it took him eight years. Trump has also appointed 143 federal district judges, and of course two Supreme Court judges (the remaining two are international trade court judges). We focus most on the Supreme Court, but in fact it hears only about 80 cases a year, while at the federal courts of appeal nearly 50,000 cases are filed a year, which means that for most Americans these courts have the final say on their rights and protections under the Constitution.
And with regard to these appeals courts, Trump owns a dubious, though not entirely shocking, distinction: He is the first president since Richard Nixon to serve a full term without placing a single African-American on them. And in the entire pool of Trump’s 200 judges, just eight are Black.
“It’s important that the judges look something like the people who have cases before them, and that they’re not all white men,” says Russell Wheeler, a visiting fellow at the Brookings Institution and an expert on judicial selection.
Wheeler is less than wowed by Trump’s numbers, pointing out that he had “an accommodating, filibuster-free Senate” and over 100 vacancies that Senate leader Mitch McConnell gifted him by blocking all but a handful of nominees in Obama’s final two years, and then taking the unprecedented action of holding open for a year a Supreme Court seat for Trump to fill.
Democrats remain furious with McConnell for refusing to even grant Obama nominee Merrick Garland a hearing, and then dispensing with the filibuster to allow Republicans to confirm Justices Gorsuch and Kavanaugh with simple majorities. Setting aside what he calls the “considerable collateral damage” of McConnell’s obstruction, William Galston, senior fellow in the Brookings Institution’s governance studies program, told the Daily Beast, “It shows what a political party can do when it focuses on a single issue. Whatever one might think of the content, it’s a substantial political achievement. When you consider how hard it is in politics to do something that’s enduring, they’ve done it.”
McConnell vowed to “leave no vacancy behind,” and if a new Democratic administration comes into power next year, “it won’t have much room to maneuver,” says Galston. Trump’s 200 judges are lifetime appointments, and because of McConnell’s relentless focus on confirming judges, there won’t be a gift basket of a hundred vacancies for President Biden to quickly fill.
Trump’s poor record on minority appointments underscores how much the two political parties are divided, and how little serious effort the Republicans have made to attract Black voters. “They’ve been focused on one goal, getting doctrinaire conservatives on the court of appeals, and without regard to what other presidents saw as keeping up with at least a degree of diversity,” Wheeler told the Daily Beast.
FDR, Truman, Eisenhower—they all appointed at least one African-American, says Wheeler (with Truman the first to name a black judge to an appeals court). “Roosevelt was the first. It was headline making, it was rare.” In 1967, Lyndon Johnson appointed the first African-American, Thurgood Marshall, to the Supreme Court. But it wasn’t until Jimmy Carter came to Washington determined to nominate judges who looked like the people they represented, and that meant more women and minorities.
“He made it his mission,” says Wheeler. Carter set up a nominating commission in each of the 11 circuits of the appeals court, and he asked home-state senators to set up commissions in their states. “Some did, some didn’t,” says Wheeler. “It was a bit of a sham, a pretext for broadening up diversity.”
When Carter took office in 1977, there were only two Blacks and one woman among the active federal appeals court judges. Carter had campaigned on “merit selection” of judges, and the commissions were his way of breaking the stranglehold that Southern segregationist James Eastland, Mississippi senator and powerful chairman of the Judiciary Committee had over the judicial selection process. Eighteen states set up the voluntary commissions. Many opted out not wanting to relinquish any power in picking judges. Texas Senator Lloyd Bentsen famously declared, “I am the nominating commission.”
D.C. Attorney Marna Tucker served on the commission for the D.C. Circuit, which was chaired by former Maryland Senator Joe Tydings, a well-known progressive. “It was made clear to us that we were supposed to look far and wide for minorities and women,” Tucker told the Daily Beast. She recalled identifying a law professor at Columbia, Ruth Bader Ginsburg, “who lived in New York where the Second Circuit had no interest in nominating her, so we nominated her.” Carter named Ginsburg to the D.C. Circuit Court in 1980. Bill Clinton elevated her to the Supreme Court in 1993.
Other notables Tucker recalls identifying for Carter: Harry Edwards, a noted legal scholar who is now chief judge emeritus of the D.C. circuit, the late Patricia Wald, who went on to become the first woman to preside over that court, and Abner Mikva, a renaissance man who had served in Congress as a Democrat from Illinois, and was Barack Obama’s mentor.
Carter confirmed 59 judges to the courts of appeals, three more than Trump, a task made possible because Congress had authorized a 25 percent increase in the judiciary, which meant 35 new appeals court judges and 117 new district judges. Divvying up the bounty was not without politics as Southern Democrats and northern machine Democrats vied for their candidates, but together they controlled the Senate. There was no McConnell blocking the path.
The 199th and 200th judges that the Republican Senate confirmed in June, Justin Walker and Cory Wilson, epitomize what their critics are up against. Both were confirmed despite their open contempt for the Affordable Care Act and their record of hostility to LGBTQ rights and equality, to abortion access, and to voting rights. Lena Zwarensteyn, the Fair Courts Campaign director at the Leadership Conference on Civil and Human Rights said Wilson “called organizations like ours and the ACLU ‘Rent-a-Mobs’ because we’re out there trying to prevent voter suppression.”
The courts have long been a top issue for Republicans. Democrats think Trump’s focus on pleasing his evangelical base with culturally conservative judges could backfire in the 2020 election. “Very few voters will vote based on who sits on the Fifth Circuit Court of Appeals, but they will vote on who will protect their health care and their civil rights,” says Dan Goldberg with the Alliance for Justice Action Campaign. “Every single Republican has to own not just Kavanaugh and Gorsuch, but scores of lower-court judges committed to taking away their health care, eroding civil rights for people of color, and protections for workers and clean air and water.”
Maine Senator Susan Collins is the poster child for Democratic rage over judges. A new ad from the progressive group, Demand Justice, says, “Collins promised to protect women’s rights, but it was all a sham. And we won’t forget.” Collins provided the pivotal vote in the Senate to confirm Kavanaugh, who sided with fellow conservatives this week in a decision that if they’d prevailed would have overturned Roe v. Wade.