The courts are intended to serve as an independent third branch willing to act as a check and balance. Yet many of Trump’s judicial nominees are known for their conservative ideologies.
Last month, the U.S. Senate voted to confirm former Alabama Solicitor General Andrew Brasher to serve on the 11th U.S. Circuit Court of Appeals. The vote fell along party lines of 52 to 43.
His nomination was opposed by, among others, the Alabama State Conference of the NAACP, who wrote that Brasher had “devoted much of his career to attempting to restrict voting rights and other critical civil and human rights.” He has supported measures making it harder for people to vote, argued against marriage equality, and defended laws that restricted women’s access to abortion.
As a U.S. circuit court judge, Brasher, who was nominated by President Trump in November after serving only a few months as an Alabama District Court judge, will have jurisdiction to set law. The Courts of Appeals hear challenges to thousands of district court decisions every year, and because the U.S. Supreme Court only agrees to hear a limited number of cases each term, the circuit courts actually have the last say in the vast majority of federal cases.
With Brasher’s confirmation, half of the Eleventh Circuit, which hears appeals of cases in Alabama, Georgia, and Florida, is comprised of judges nominated by Trump.
In fact, more than one in four circuit court judges is a Trump appointee. In three short years, the president, with the help of Senate Majority Leader Mitch McConnell, has transformed the makeup of the federal courts in a way no other president in recent history has.
Since taking office, President Trump has nominated 245 people to federal judgeships. As of this writing, 192 of his nominees have been confirmed; 50 were for appointments to the circuit courts. In comparison, by the end of his third year in office, President Obama had confirmed 25 circuit court judges; he only appointed 55 during his entire presidency.
“When Trump took office, Republican-appointed circuit judges occupied 40% of the 179 statutory judgeships,” the Brookings Institution’s Russell Wheeler writes. “Today they occupy 54%.”
Not only are many of these judicial nominees known for their conservatives ideologies, Wheeler added, but they’re also younger, too. The median age of Trump’s circuit court appointees is 48.2; at this point in his first term, the median age of Obama’s picks was 57.2.
Because these judgeships are lifetime appointments, Trump’s nominations will have lasting power.
Generally speaking, most of the nominees have been vetted and recommended to the White House by the nonprofit Federalist Society. Meagan Hatcher-Mays, the director of democracy policy for Indivisible, called the organization “a shadowy conservative group that mobilized in the years after the Supreme Court’s historic decision in Roe v. Wade.”
More often than not, their picks are rated as “qualified” or “well-qualified” for their positions by the American Bar Association (ABA). Nine, however, were not—which is more than Trump’s last four predecessors. (Conservatives say the ABA’s vetting process is biased against nominees who lean right.)
In December, for example, Sarah Pitlyk, who is also a member of the Federalist Society, was confirmed as a judge on the U.S. District Court for the Eastern District of Missouri, despite being rated “not qualified.” Planned Parenthood called her “one of the most extreme opponents of reproductive health care ever nominated to be a federal judge.” The National Women’s Law Center also issued an opposition letter, writing that they didn’t believe she was “capable of fairly and impartially deciding matters involving … important legal protections for women, LGBTQ individuals, and all people impacted by discrimination.”
Rick Glazier is the executive director of the North Carolina Justice Center and teaches at the Campbell University School of Law. Because of the processes the administration has undergone to install new judges, he told COURIER, there is “a real threat” to the independence of the federal judiciary.
“The ideological litmus tests that are being funneled through the White House for these nominees make it hard for the public to have confidence the judiciary is fully nonpartisan,” Glazer explained. Not only has the ABA’s vetting process been cast to the sidelines, he continued, but the Senate Judiciary Committee is not sufficiently investigating the nominees. “They’re not getting sufficient panel hearings of any real value or meaning.”
That’s because McConnell revised some Senate rules regarding judicial nominees, making it easier for him to fast-track their hearings. “My motto for the remainder of this Congress is ‘leave no vacancy behind,'” McConnell said in December.
As a result, Glazier said, it’s difficult to trust that the judiciary can be “an independent third branch willing to act as the check and balance the constitution envisions on an overreaching executive or an overreaching legislative body.”
Margaret Zhang, staff attorney at the Women’s Law Project in Pennsylvania, also points to the lack of diversity among Trump’s picks. “So many of the recent nominees tend to be predominantly white men, which is troubling for us because we certainly believe that the courts should reflect the populations they serve,” she told COURIER.
According to a recent report from Lambda Legal, more than one-third of Trump’s judicial nominees have a history of openly opposing LGBTQ rights.
“This is a fast-moving train wreck that—unless something is done now—could undermine civil rights protections for the next 40 years,” Lambda Legal senior attorney Sasha Buchert said in a statement. “An entire generation of LGBTQ people seeking their day in court could be facing judges who have made no secret about their hostility to the rights of LGBTQ people, women and immigrants.”
Historically, Glazier explained, the federal courts have decided some of the most groundbreaking laws for minority rights. For example, they ruled racial segregation in schools was unconstitutional (see Brown v. Board of Education) and ensured women could exercise their right to vote (see Leser v. Garnett).
“The federal court was always thought of as the predominant institutional protector of minority rights,” Glazier said. Because of the judiciary’s transformation, “that is no longer the case. That is a fundamental change in the course of the judiciary of this country, unseen in many, many, many decades.”
Of course, Senate Democrats are aware of what’s happening, and most often vote against the more ideological candidates.
They also occasionally speak out. During a Senate Judiciary Committee meeting in February, for example, Sen. Richard Blumenthal of Connecticut raised concerns about how imperative it is that the judges tasked with overseeing federal cases maintain impartiality.
The effects of having federal courts stacked with judges who are unapologetically conservative are already palpable. States such as New York, Illinois, and Vermont have recently passed laws to protect and expand access to abortion if Roe v. Wade is overturned by the Supreme Court—a real possibility since Trump installed staunchly conservative Justices Neil Gorsuch and Brett Kavanaugh.
In February, the 9th U.S. Circuit Court of Appeals—which covers a jurisdiction of more than 60 million people—ruled in support of a controversial Trump administration rule that restricts Title X healthcare providers from talking to patients about abortion. Two Trump appointees, Eric Miller and Kenneth Lee, cast key votes in the 7-4 en banc (or full court) decision to uphold the so-called domestic gag rule.
In December, the 5th Circuit struck down the Affordable Care Act’s individual mandate, a key provision of the healthcare law, thus putting its future in jeopardy. One of the two appellate judges who issued the ruling was nominated by President Trump.
The federal court system touches the lives of every single American, whether directly or indirectly, Glazier said. Because it is “the foundation of the protection of our right to justice, to freedom, to equality. … the protection of that court system is paramount, particularly when it comes under attack from someone like the president of the United States.”
He added: “There are many issues at stake in this election cycle—none bigger or more important than the federal judiciary.”