Remaking the courts may be Trump’s biggest, best success
By John Hinderaker, New York Post, November 5, 2019
Judges gavel, Shutterstock image.
President Trump is expected to comment publicly Wednesday on the milestones his administration has reached with respect to judicial confirmations. His record is indeed remarkable: Working in close tandem with Senate Majority Leader Mitch McConnell, Trump has successfully gotten confirmed, since his inauguration, 159 federal judges — including 114 district court judges, 43 court of appeals judges, and, of course, two justices of the Supreme Court. And with more than a year to go in his term, he has nominated an another 55 judges who await confirmation.
Trump’s record compares favorably with that of President Barack Obama, who confirmed 141 district court and 30 court of appeals judges during of his entire first term.
Trump’s appointments are altering the balance of power in several circuits. For example, the Third Circuit Court of Appeals (which covers Pennsylvania, New Jersey and Delaware) now has a majority of Republican-appointed judges. The important Second Circuit (New York) and Eleventh Circuit (Georgia, Florida and Alabama) are close to being majority Republican-appointed.
Trump has even made inroads in the notoriously liberal Ninth Circuit, which now has 12 Republican-appointed and 16 Democratic-appointed judges. This is important because, given the limited number of cases the Supreme Court can hear, the courts of appeal are, as a practical matter, the court of last resort in the vast majority of cases.
And Trump’s two Supreme Court appointments have cemented, for the time being, a relatively conservative majority on most issues.
By the end of his first term, Trump will have effected historic changes in the federal judiciary. If he wins a second term, he’ll have the chance to remake the courts for a generation. This will be especially true if he has the opportunity to replace one of the current liberal members of the Supreme Court.
It is regrettable that the federal courts have been politicized over recent decades, with the result that the confirmation process has become increasingly contentious. But that was the inevitable result of the intrusion of the courts into many areas that had historically been the province of Congress and state legislatures.
Now, whether Chief Justice John Roberts wants to acknowledge it or not (and it’s entirely understandable if he prefers not to), there are often important differences between Republican-appointed and Democratic-appointed judges.
What will be the impact of Trump’s appointments? In recent years, the Supreme Court’s most controversial decisions have tended to involve social issues and religious freedom. But the focus is likely to shift over the coming year. Republican ascendancy in the federal courts, if Trump can cement it, will lead to procedural reforms. Thus, for example, the Supreme Court is likely to limit the usefulness of judge-shopping by restricting the ability of district-court judges to issue nationwide injunctions.
The great looming issue, which increasingly commands the attention of legal scholars and judges, is the power of the administrative state. Put simply, the government we now live under is not the one that is described in the Constitution. Most federal power resides not in the president or Congress but the vast, unelected, permanent federal bureaucracy — a bureaucracy that has become increasingly arrogant as well as ideologically uniform. Thus, we have seen the absurd spectacle of Trump being criticized for “undermining the foreign policy of the United States.”
The Supreme Court has shown interest in reconsidering decisions that have granted extraordinary deference, amounting to nearly unchecked power, to federal agencies. Legal scholars like Philip Hamburger have persuasively questioned the constitutionality of the manner in which federal regulatory agencies have been allowed to operate. But because the federal bureaucracy is overwhelmingly liberal, such concerns have so far been limited to the more conservative justices and judges.
Seismic changes in the law are not usually the result of a single, decisive decision by the Supreme Court. Rather, the groundwork is laid over time, in a variety of cases arising in different contexts, decided by trial and appellate courts. If Trump has the time and opportunity to complete his project of remaking the federal judiciary, his most lasting legacy could be the restoration of the constitutional separation of powers, and the diminution of the power of the “fourth branch of government,” the unelected federal bureaucracy.
John Hinderaker is president of the Center of the American Experiment.
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