Has Trump really reshaped the courts in his image?
October 14, 2020
The Senate confirmation hearings of Judge Amy Coney Barrett are bringing focus on the Supreme Court and the judiciary system like never before.
With the prospect of a 6th Supreme Court Justice appointment coming from Republicans, clearly there are reasons for Democrats to feel uneasy. More broadly, over the past four years it is difficult to escape the narrative that President Trump is reshaping the broader judicial system in his favor.
For example this article from the New York Times leads off with the line:
“President Trump’s imprint on the nation’s appeals courts has been swift and historic. He has named judges with records on a range of issues important to Republicans — and to his re-election.”
But is it so historic? And how do the judges’ records actually hold up once they are actually on the bench?
If we step back from the hysteria of the current moment and examine how things actually look in the big picture and at the local level, we might realize that this isn’t quite as big of a moment as we think it is.
Not living up to the hype
If you closely examine the sweeping statements that newspapers confidently make about Trump reshaping the federal judiciary in his image, you realize that like many things with our current president, they don’t quite live up to the hype.
There was a great analysis done by Brookings in late June that examined the issue in depth.
They looked at the data of judges confirmed under Trump vs. past presidencies and much of it surprisingly runs contrary to the narrative that we are used to hearing in the media.
They came to the conclusion that not only is it not a vast re-shaping of the judiciary, but in fact President Trump may be making:
“less of an impact on the federal judiciary than that achieved by several Trump predecessors.”
Their conclusion comes from several key facts:
- Trump’s 30% share of current judges in the appeals court is lower than both Presidents Nixon (35%) and Carter (40%)
- While his 23% combined share of appeals court and district court judges is well below Presidents Nixon, Carter and Kennedy who were all above ⅓ and about the same as recent Presidents Obama and Bush
- Trump’s 145 total district court appointees are less than Presidents George W. Bush, Clinton and Carter
The analysis also highlighted a key point in the apparent strategy of the administration: to focus on high-profile appeals court confirmations over the more numerous and less visible district court appointments. In fact, these district court appointments took almost twice as long on average (238 days vs. 136 days).
Although less high-profile, the district courts terminate far more cases than the appellate courts and could be argued to be more important.
But leaving that aside, it is important to note that even the high-profile appeals court and Supreme Court appointments may not be as they seem.
Not a pawn
One needs to go no further than Supreme Court Chief Justice John Roberts to remember that justices are not beholden to the people or parties that appoint them. Recently he famously cast the deciding votes on major cases pertaining to abortion and Obamacare, siding against the Conservative wing of the court.
And if you dig a little deeper and look at things at the local level, you can find more examples of judges appointed by Trump himself who have ruled against the interests of him and his party.
For example, recently in Louisiana, not one, not two, but three Trump appointed appeals court judges agreed in a landmark ruling against big-oil, that cleared the way for these companies to be held responsible for environmental damage they created in the Gulf of Mexico.
As described in a great report from local newspaper Bayou Brief, the case was an attempt by the oil companies to have their case decided by Federal courts rather than Louisiana state courts (and in the process further delay a process that has stretched close to a decade already).
However, all three appeals court judges agreed that this case should be determined in Louisiana state courts and as a result will most likely go to trial soon.
So big was the moment that long-time Democratic political strategist James Carville, who grew up and still lives in the state, declared it:
“The best day Louisiana has had in the 21st century”.
Despite the fact that the appeals court judges deciding the case were three of President Trump’s high-profile appointees, their decision was based on what they thought was right, rather than how much oil companies were lobbying Trump and the Republican party.
So keeping that in mind, there’s reason to believe Amy Coney Barrett when she stated at her confirmation hearing:
“I would certainly hope that all members of this committee would have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide this election for the American people.”
Chief Justice Roberts and the three appeals court judges in Louisiana have already shown that they are not political pawns, but instead they are individuals who have their own personal opinions and motivations.
And motivation might be the key point to remember when it comes to the wrangling over the Supreme Court.
There are rumblings that Chief Justice Roberts and other conservative justices on the court are worried about its reputation as an institution and are taking this into account with their rulings.
In the end, the justices will keep in mind that their power is only upheld by the legitimacy in which they use it. And if they become too far disconnected from the people who control the government, and say the Democrats take back the Senate and the White House, there will be the prospect of significant changes to the judicial system. Or in other words, the Democrats will pack the courts with their own nominees, and the current judges will see their power watered down.
And if that does indeed happen, that would be an event that could actually be described as a historic reshaping of the courts.