With his judicial appointments, Trump is courting his base where it counts
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The public image of Donald Trump’s White House is one of chaos and failure, but in reality it's a well-oiled judicial-appointment machine whose purpose is to ensure the continued support of his evangelical base.
The sustained support of President Donald Trump by the evangelical community is, on the face of it, baffling. With three marriages, multiple sexual harassment accusations and a recording in which he advocates sexual assault, he is hardly a paragon of morality. Yet the Christian Right helped propel him to office and its leaders continue to back him, apparently undeterred.
“Because of the judges,” said Ned Ryun, founder and CEO of American Majority, which trains conservative activists and politicians. “That’s why you saw 80-something percent [of evangelicals] break for him in the end. What he was saying at times was making them feel wildly uncomfortable, and then it dawned on them that if Hillary wins, we lose the courts.”
For evangelicals, the courts are critical. It is through the federal courts, most specifically through the Supreme Court and the appellate courts, that evangelicals hope to see their agenda enacted. Evangelicals want courts that will restrict or do away with abortion rights, side with them on transgender issues, outlaw gay marriage and protect them from being forced to do things that go against their religious beliefs – such as, in a case recently heard by the Supreme Court, bake a cake for a gay wedding.
Trump is doing his best to give them exactly that.
With the Senate’s confirmation of a 12th circuit court judge on December 14, Trump had more appellate court judges confirmed in his first year of office than any other president. As of January 9, the Senate has also confirmed six of his district court appointees and, to great fanfare, his nominee for the Supreme Court, Neil Gorsuch.
“The appointments are going very quickly,” said Shira Scheindlin, a retired judge of the United States District Court for the Southern District of New York. “It is an unprecedented speed of both nominations and confirmations.”
On top of those confirmed, another seven appellate court appointees are waiting for the Senate to take action on their nominations, as are another 40 district court candidates. And there are still plenty of spots for Trump to fill, including 17 open seats on the US Court of Appeals and 124 district court vacancies.
“He can shift the majority on all of the appellate courts – he’s got the vacancies,” Scheindlin said. “If he can shift the balance on the appellate courts, that’s where the action is.”
Trump stamping his mark on the future
Given that these are lifetime appointments and the average tenure is 30 years, Trump’s stamp on the federal judiciary is likely to endure for generations to come.
Trump hasn’t been shy about saying so. “A big percentage of the court will be changed by this administration over a very short period of time,” he said at a cabinet meeting in November. And on the subject of his nominees in October: “That has consequences 40 years out, depending on the age of the judge.”
“That is exactly the game plan,” said Jed Shugerman, professor of law at Fordham University. “Their game plan is to use this presidency to transform the courts, and so far they’ve succeeded… [The Supreme Court appointment of] Gorsuch by itself, for many evangelicals… was worth the price of admission, all the principles they abandoned.”
Given Trump’s trouble getting other elements of his agenda enacted and the slow pace with which he has filled job vacancies in federal agencies, the efficiency of the judicial appointment process underscores the importance the president places upon it. He has relied heavily on the input of Leonard Leo, executive vice president of the Federalist Society, a conservative legal organisation, and White House Counsel Donald McGahn, a Federalist Society member. Indeed, McGahn had a list of nominees ready to go weeks before Trump took office.
“They hit the ground running,” Shugerman said. “They basically outsourced to the Federalist Society the selection of judges….With Don McGahn there, they’ve insourced the Federalist Society.”
For conservatives, though, that is a plus. “Federalist Society members are considered the gold standard by conservatives,” Ryun said.
“These are very much conservative legal elites,” echoed Neal Devins, professor at William & Mary Law School. “They’re very respectable people.”
Lacking experience and uninformed
The appointment process has not been without its setbacks. Several candidates have been forced to withdraw or the White House has abandoned their nominations after they came under fire.
Brett Talley, who had been nominated for a district court slot in Alabama, bowed out after being criticised for a lack of experience and for failing to disclose that his wife is McGahn’s chief of staff.
Jeff Mateer, nominated for a district court seat in Texas, was dropped after it emerged that he had said that transgender children were evidence of “Satan’s plan” and had rued the end of conversion therapy for homosexuals.
And Matthew Petersen, who was up for a district court seat in the District of Columbia, withdrew after a video of him appearing woefully uninformed and unprepared in his Senate confirmation hearing went viral.
What’s more, a significant number of Trump’s judicial nominees have been rated “not qualified” by the American Bar Association. Petersen was not one of them.
Not only are they conservative, Trump's judicial nominees are a decidedly un-diverse bunch. An analysis by the Associated Press published on November 13, 2017, found that 91 percent of those nominated to the federal bench (including the International Courts of Trade) at that point were white and 81 percent of them were men.
If looking just at the Supreme Court and appellate courts, two-thirds of the nominees have been white men.
By contrast, only 31 percent of those nominated to the federal bench by Barack Obama in his first year were white men. That number was 67 percent under George W Bush, 38 percent under Bill Clinton, 74 percent under George H W Bush and 93 percent under Ronald Reagan.
The makeup of the country’s highest courts affects the public’s perspective about their fairness. If the courts are not diverse, “there’s a clear perception where the courts are not a place people can go and vindicate their civil rights,” Kyle Barry, senior policy counsel for the NAACP Legal Defense and Educational Fund, told the Associated Press.
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