David Wolfe Bender
Get Ready: the Trump Administration's Successful Judicial Strategy is Not Close to Over
Analysts argue about the effectiveness of President Trump's legislative policies and foreign policies, but most of them would agree about the effectiveness of one area of interest: his judicial policies.
Unlike his direct predecessors, President Trump's administration has been laser-focused on the judiciary, fighting hard to get their nominees onto federal benches across the United States.
The administration's goals were clear from the outset:
Capitalize on Majority Leader Mitch McConnell's past strategy of keeping as many judicial seats open as possible (think back to the near halt that the Republican leader put on President Obama's nominees) by quickly filling nearly all the open district and circuit court seats.
Appoint and confirm not only one, but at least two, strong conservative justices to the Supreme Court of the United States.
The Circuit and District Courts
After the GOP won the 2016 presidential elections and retained control in the Senate, they got to work quickly. During the 115th Congress (January 2017- January 2019), the Republican-controlled Senate confirmed 30 judicial nominees to appellate courts. Compare that with the 16 judicial nominees confirmed in the first Congress after President Obama was elected or the 17 during President George W. Bush's first Congress.
The Senate during his first two years confirmed 53 of President Trump's nominees to district courts, far more than Obama's 44 (though not as many as Bush's 83 district court nominees).
It didn't stop there. Republicans knew that the 2018 midterm elections would present an interesting dichotomy. The House of Representatives was likely going to flip back to Democratic control, but the Senate presented an entirely different story. The Class 1 Senate seats were dominated by Democratic incumbents, leaving little room for Democrats to win back the majority. The GOP only needed to defend nine seats, whereas the Democrats needed to defend 26.
Sidenote: In 2012, Senate Democrats won seats in traditionally GOP-dominated states. Some examples include Missouri, North Dakota, Indiana and West Virginia. That was due to a host of reasons, but there were a string of controversial candidates running in a few states.
In Indiana, GOP candidate Richard Mourdock made controversial comments about rape and pregnancy, leading Democrat Joe Donnelly (D-IN) to a victory in the GOP stronghold.
Democrat Claire McCaskill (D-MO) won in Missouri after GOP candidate Todd Akin (R) also made controversial comments about rape and pregnancy.
Those candidates were up for reelection in 2018, and on top of the fact that Republicans had so few incumbents running that year, it would be quite difficult for Democrats to take back the Senate.
By the time all the elections had been called, Republicans won back Senate seats in Indiana, Missouri, North Dakota and Florida. The Democrats won back seats in Arizona and Nevada, leaving Senator Mitch McConnell (R-KY) in the Majority Leader's seat for at least another two years and the Republicans with an expanded majority.
In the 116th Congress, the Senate has confirmed an additional 23 of Trump's judicial nominees to appellate courts and 98 of his nominees to district courts (with even more awaiting confirmation).
Sidenote: the Senate has confirmed 151 of President Trump's district court nominees so far. 268 of Obama's district court nominees were confirmed in his entire Presidency. 261 were confirmed during Bush's entire presidency. President Clinton had 305 district court nominees confirmed in his presidency.
At the appellate level, President Trump has nominated an extraordinary number of confirmed nominees. He's nominated 53 confirmed appellate justices so far in his first term. Compare that to President Obama's 55 confirmed appellate nominees in his entire presidency. Bush and Clinton, respectively, nominated 62 and 66 in their entire presidencies.
The Supreme Court
One element of judicial understanding that is lost among too many citizens is that the Supreme Court is not the entire ballgame; the Supreme Court usually hears only 80 cases or so per year, a minuscule fraction of the estimated 10,000 petitions for certiorari. That's less than 1%, meaning that most cases never get to the Supreme Court.
The Supreme Court usually hears only 80 cases or so per year, a minuscule fraction of the estimated 10,000 petitions for certiorari.
Nevertheless, the Supreme Court — the highest court in the United States — remains the most important court in the country. Of course, President Trump was immediately given the opportunity to fill the slot left open after late Justice Antonin Scalia died in 2016. Scalia, who was nominated by President Ronald Reagan (R), was a staunch conservative and quickly rose to become the hero of conservative textualists.
After Scalia's death, the court was split with four liberal justices (Associate Justices Ginsburg, Breyer, Sotomayor and Kagan) and four conservative justices (Chief Justice Roberts, along with Associate Justices Kennedy, Thomas and Alito). Justice Kennedy, however, was commonly the court's swing vote during most of Obama's term in office.
Kennedy was the lone conservative to join the majority for the landmark Obergefell v. Hodges decision that recognized the legal right for same-sex marriage.
He also joined Justice Breyer's majority opinion in Whole Woman's Health v. Hellerstedt, a landmark decision which ruled Texas could not enact a law that would require abortion providers to hold admission privileges at a nearby hospital.
Trump's nominee to fill Scalia's seat was Justice Neil Gorsuch, a relatively young, well-educated Justice on the Tenth Circuit Court of Appeals. Gorsuch had ample experience in law, having served in private practice for ten years before moving to President George W. Bush's Department of Justice as the Principal Deputy Associate Attorney General. Bush, in 2006, nominated Gorsuch to the Tenth Circuit.
But one of Gorsuch's qualifications flew under the radar: he clerked for two Supreme Court justices in the 1990s, one of them being Justice Anthony Kennedy. That was actually the first time that had ever happened; no Justice in the long history of the United States Supreme Court ever served with a Justice for whom they clerked.
The nomination of one of Kennedy's clerks is now thought to have been a part of a larger strategy: to try and charm the then-80-year old Justice into retiring during President Trump's first term, assuring a strong conservative majority on the Court for decades to come.
President Trump's family shares close ties with a member of Justice Kennedy's family. Justice Kennedy's son, Justin, worked at Deutsche bank as an investment banker. Over time, the Trump family developed a close relationship with Kennedy's son. White House tech adviser Peter Thiel also went to law school with Kennedy's other son, Gregory Kennedy. Reporting from 2017 showed that Thiel and Gregory knew each other well, serving as the President of the school's Federalist Society in back-to-back years.
In 2017, after President Trump's first Joint Address to Congress — which is commonly attended by most members of Congress, the cabinet and the United States Supreme Court — a microphone picked up a conversation between the President and Justice Kennedy:
"Say hello to your boy," Trump said. "Your kids have been very nice to him," Kennedy said back to the President.
Less than 18 months later, Kennedy would retire from the Court. President Trump replaced him with Justice Brett Kavanaugh, another one of Kennedy's former clerks.
President Trump Could Be Trying The Same Strategy Again
Just months ago, Associate Justice Ruth Bader Ginsburg announced through the Court that she, again, has cancer.
"On May 19, I began a course of chemotherapy (gemcitabine) to treat a recurrence of cancer," Ginsburg said in the statement. "A periodic scan in February followed by a biopsy revealed lesions on my liver. My recent hospitalizations to remove gall stones and treat an infection were unrelated to this recurrence."
This is not the first time she's fought cancer. She's battled different types of cancer for over 20 years. She also said in her statement that she would remain on the Supreme Court.
Ginsburg is one of the most liberal justices on the Court. The Clinton nominee has also consistently been called one of the most recognizable justices on the Court.
Sidenote: For years, Ginsburg was considered the most liberal justice on the court. But after President Obama nominated Justice Sonia Sotomayor in 2009, they've been voting in near-lockstep. Ginsburg and Sotomayor share similar ideologies, agreeing 93.1% of the time during the 2018 term.
The Trump administration, however, is preparing for a potential vacancy. On September 9, 2020, the White House released a list of 20 additions to his Supreme Court list. They include incumbent Senators Ted Cruz (R-TX), Josh Hawley (R-MO) and Tom Cotton (R-AR).
The inclusions of the three Senators drew lots of attention, but what was lost was in that sea of attention was the inclusion of six people who served as clerks to the longest-serving justice on the bench, Justice Clarance Thomas. Those six people represent almost a third of the names on the list.
Justice Thomas has not given any reason to believe that he is interested in retiring any time soon, but he turned 72 in June. He's served on the Supreme Court bench for almost 29 years.
Sidenote: Justice Alito, a conservative justice who has served on the Court since 2006, is 70 years old. Over the next few years, he could too be a target for retirement. Alito has long been known as textualist conservative, writing the scathing descent of Justice Gorsuch's Bostock v. Clayton County opinion that made it illegal to fire an employee on the basis of their sexual orientation or gender identity.
Gorsuch used textualist principles for the opinion's central theme in the Bostock case. Alito responded harshly in his dissent. "The Court’s opinion is like a pirate ship," Alito wrote. "It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated — the theory that courts should 'update' old statutes so that they better reflect the current values of society."
If President Trump were to win reelection or another Supreme Court vacancy were to open up in 2020, the eyes of Supreme Court analysts will turn to how President Trump and his allies could charm another Supreme Court justice into retiring during his presidency.