President Donald J. Trump has done more to reshape the federal judiciary with a conservative outlook towards the constitution than any president since Richard Nixon. This has been no accident. On Sunday, the New York Times reported in detail the systematic plan Trump and his team took to ensure a changed judiciary with strict constitutionalist bonafides.
Charlie Savage’s piece this Sunday is well worth the read. The plan was pretty straightforward and was all started by White House counsel, Donald F. McGahn II:
"Start by filling vacancies on appeals courts with multiple openings and where Democratic senators up for re-election next year in states won by Mr. Trump — like Indiana, Michigan and Pennsylvania — could be pressured not to block his nominees. And to speed them through confirmation, avoid clogging the Senate with too many nominees for the district courts, where legal philosophy is less crucial.
Nearly a year later, that plan is coming to fruition. Mr. Trump has already appointed eight appellate judges, the most this early in a presidency since Richard M. Nixon, and on Thursday, the Senate Judiciary Committee voted along party lines to send a ninth appellate nominee — Mr. Trump’s deputy White House counsel, Gregory Katsas — to the floor.
Republicans are systematically filling appellate seats they held open during President Barack Obama’s final two years in office with a particularly conservative group of judges with life tenure. Democrats — who in late 2013 abolished the ability of 41 lawmakers to block such nominees with a filibuster, then quickly lost control of the Senate — have scant power to stop them.
Most have strong academic credentials and clerked for well-known conservative judges, like Justice Antonin Scalia. Confirmation votes for five of the eight new judges fell short of the former 60-vote threshold to clear filibusters, including John K. Bush, a chapter president of the Federalist Society, the conservative legal network, who wrote politically charged blog posts, such as comparing abortion to slavery; and Stephanos Bibas, a University of Pennsylvania law professor who once proposed using electric shocks to punish people convicted of certain crimes, although he later disavowed the idea. Of Mr. Trump’s 18 appellate nominees so far, 14 are men and 16 are white."
While the federal judiciary system may not be on the mind of most Americans, Conservative voters who cared may have helped push President Trump over the electoral finish line. Indeed, Trump often spoke on the campaign trail how we would bring in conservative judges.
“For now, conservatives are reveling in their success. During the campaign, Mr. Trump shored up the support of skeptical right-wing voters by promising to select Supreme Court justices from a list Mr. McGahn put together with help from the Federalist Society and the conservative Heritage Foundation. Exit polls showed that court-focused voters helped deliver the president’s narrow victory. Now, he is rewarding them.
“We will set records in terms of the number of judges,” Mr. Trump said at the White House recently, adding that many more nominees were in the pipeline. Standing beside the Senate majority leader, Mitch McConnell of Kentucky, he continued, “There has never been anything like what we’ve been able to do together with judges.”
President Trump has the opportunity to reshape constitutional law for at least the next forty years with the sheer magnitude of young, conservative, judges he is appointing.
"As a result, Mr. Trump is poised to bring the conservative legal movement, which took shape in the 1980s in reaction to decades of liberal rulings on issues like the rights of criminal suspects and of women who want abortions, to a new peak of influence over American law and society."
“What makes this a unique opportunity in modern history is the sheer number of vacancies, the number of potential vacancies because of the aging bench, and the existence of a president who really cares about this issue in his gut,” said Leonard A. Leo, an informal adviser to Mr. Trump on courts who is the executive vice president of the Federalist Society."
The full piece by Savage goes into other areas such as the growing concern that the judicial branch will become just as partisan as Congress, how liberals are reacting, and the long and sometimes difficult process of appointing federal judges.
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