Inside Trump’s Plan to Dramatically Reshape U.S. Courts

16 minute read

A few days after Donald Trump was elected President in November 2016, Senate Republican leader Mitch McConnell placed a call to incoming White House counsel Don McGahn. McConnell knew Trump had a chance to change the ideological makeup of the federal court system in a way not seen since the Reagan era, but only if McConnell and McGahn could get him to tighten up a disorderly political operation, and fast. “I said, Don, we’ve got an opportunity here to have a huge long-term impact on the country,” McConnell recalls, sitting in a cushioned chair in his Capitol office one day last month. He made McGahn a promise to move qualified judges through the Senate confirmation process as quickly as the White House could send them.

The conversation launched what may prove to be the most important legacy of the Trump presidency. Amid the dramatic infighting, global feuds and impulsive tweets that marked the President’s first year, Trump, McConnell and a group of ambitious conservative lawyers set in motion an enormous effort to reshape the federal judiciary. Trump’s team helped get a record-breaking 12 appeals-court judges confirmed during his first year, four times as many as President Obama did in the same time frame. Trump has nominated roughly 80 federal judges, 24 of whom have already been confirmed by the Republican-led Senate. And he’s just getting started: Trump still has 139 open seats on the bench to fill, a number that has only grown since he became President. “We’re filling up the courts with really talented people who understand and read the Constitution for what it says,” Trump tells TIME. “It’s already having a tremendous impact. These appointments are going to be one of the most important things, if not the most important thing, we do.”

The judges Trump picked are on the whole smart, experienced and conservative. The American Bar Association evaluated 60 of them and rated 56 as qualified or well-qualified. They are mostly white and male, and several have spurred controversy with their comments about hot political and social debates. On the bench, their views will shape a sweeping array of issues. Conservative judges tend to be sympathetic to claims about gun rights, religious freedom and free speech. During his time on the 10th Circuit, for example, new Supreme Court Justice Neil Gorsuch ruled on a landmark case involving the craft-store chain Hobby Lobby, finding that it had a right not to provide birth-control coverage to employees for religious reasons. At the same time, the judges Trump’s team favors tend to be skeptical about abortion rights and workplace and environmental protections. Shortly after Trump nominee Amy Coney Barrett was confirmed to the Seventh Circuit Court of Appeals in October, she joined a decision refusing to rehear a workplace racial-segregation case.

Since the vast majority of cases never make it to the Supreme Court, these life-tenured judges will be the final authority on some of the most controversial issues in American life. Most of those confirmed so far have taken seats formerly held by Republican-appointed jurists, so the balance on major circuits hasn’t yet shifted drastically. But it will. Filling the bench is a project whose impact will accrete slowly, with one decision at a time by judges who hold their jobs for decades. “They will way outlast most of us,” says Senator Richard Blumenthal of Connecticut, a Democrat on the Senate Judiciary Committee.

This plan to change America for generations isn’t happening by chance. Trump’s team has created a streamlined process in the White House and Senate that maximizes the opportunity he’s been handed. They’ve razed congressional customs and carefully nurtured the relationship between the President and conservative legal scholars. In the process, McConnell, McGahn and a constellation of advisers have unclogged the judicial pipeline, pushing nominees onto the courts faster than ever before. The result, McConnell believes, could be Trump’s most consequential bequest. “The tax bill was hugely important, but as soon as the government changes, believe me, they’ll revisit the tax code,” McConnell tells TIME. “The impact that this Administration could have on the courts is the most long-lasting impact we could have.”

The first test for Trump’s judicial strategy came almost a year before his staff started unpacking boxes in the West Wing. On Feb. 13, 2016, early in Trump’s fight to win the Republican nomination, Supreme Court Justice Antonin Scalia died in his sleep during a hunting trip at a luxury ranch in Texas. That afternoon, Trump campaign aide Stephen Miller, now a White House senior adviser, called an associate of Leonard Leo, executive vice president of the Federalist Society, an influential conservative group. A Republican debate was scheduled for that evening, and Leo says Miller wanted his advice on how to talk about Scalia’s death. “That was the first inkling,” Leo recalls, that Trump–a former pro-choice Democrat whose closest connection to the conservative judicial network was through his sister, Maryanne Trump Barry, who sat on the Third Circuit–could be an ally on the courts.

Trump and Leo built an unlikely alliance that would benefit both the politician and the legal doyen. In March 2016 they hatched a plan to release a list of conservative judges that Trump promised to pick from to replace Scalia. The unusual maneuver, orchestrated by McGahn, helped persuade some skittish Republicans to vote for Trump, while easing the fears of the party in Congress. The list “comfort[ed] a lot of my members that he might appoint these kind of people,” McConnell says, “given his own background, which was far from, shall I say, ideologically consistent.”

When Trump won in November, winnowing the list kicked into high gear. One week after the election, around the same time as McConnell’s call, Leo gathered with Trump, McGahn and other advisers in the President-elect’s office on the 26th floor of Trump Tower. Leo, direct and bespectacled, began teaching Trump about the subject he’d spent his life following. “I don’t think he necessarily knew how many judges he was going to be able to appoint,” Leo recalls. “One of our jobs was to make it clear to him that this was going to be a pretty massive enterprise.”

Leo shared some of the same concerns as McConnell. In order for Trump to seize the huge opening on the courts, things would have to be different than they were during his slapdash campaign. In transition meetings with Trump, Leo says, he stressed “the importance of maintaining some degree of order.” If there were any topic unlikely to capture the mercurial boss’s attention, it might be granular discussions about conservative judicial prospects.

But Trump’s interest had already been piqued in a classically Trumpian way: he noticed the polls. By the time he was elected President, Trump grasped how beneficial his campaign partnership with conservative court watchers had been. National exit polls showed that 21% of voters said the Supreme Court appointment was “the most important factor” in their decision, and those voters strongly favored Trump. He knew he had to deliver quickly on the Supreme Court. “He made such a big deal out of it,” Republican Senate Judiciary Committee chairman Chuck Grassley says. “He couldn’t have reneged.”

Just over a week after he took the oath of office, Trump nominated Gorsuch, a widely respected conservative from Colorado, to fill Scalia’s seat. Gorsuch would become a crucial test case for the judicial-confirmation strategy that Trump’s team had set up. And it worked. About two months later, with Leo consulting, McGahn running the operation and Senate Republicans ready to carry him over the finish line, Gorsuch was confirmed to the nation’s highest court. In contrast to the turmoil elsewhere in the opening months of the Trump Administration, the process was smooth and effective.

“It’s bizarre to have the Supreme Court nominee be your practice for [judicial nominations], but that was effectively his first shot,” says Carrie Severino, head of the conservative Judicial Crisis Network. Once Gorsuch was confirmed, the legal team’s focus shifted, Severino says, to the next challenge: “Now let’s fill up the lower courts.”

After the Gorsuch win, attention turned to the daunting project of filling the rest of the judicial vacancies. The Trump Administration has been able to confirm some two dozen federal judges in 12 short months for two main reasons. First, McGahn’s office runs a tighter ship than past Administrations. McGahn and his staff receive input on names from outside advisers, like local lawyers, governors and state attorneys general. “You want all the information you can get,” says a senior Administration official. The Federalist Society or the Office of the Vice President sometimes offers input, and the White House consults with home-state Senators, according to sources with knowledge of the process. On district courts, the Senators hold much more sway: they suggest three names, and the counsel’s office generally picks from that short list. But McGahn’s office keeps closer control of the process than his predecessors, cutting out other stakeholders within the White House from early decisions, like the legislative affairs office and political affairs shop.

The other key to the effort’s success is McConnell, who has been planning for this opportunity for years. The Kentuckian knew there were few big pieces of legislation that Republicans could pass with a slim majority in the Senate. And even those could be undone when the next Democratic Administration swept into power. So while others in his party were focused on winning the 2016 presidential race, McConnell quietly blocked judges from being confirmed under Obama, stockpiling vacancies for whoever would become the 45th President.

The tactic made Democrats furious–especially McConnell’s unprecedented decision to deny a hearing to Merrick Garland, Obama’s nominee to fill Scalia’s seat. McConnell argued that the confirmation window closes in a President’s final year. Some two-thirds of Americans disagreed with that view, according to a CNN/ORC poll in March 2016, including a majority of Republicans. But in the long run, McConnell didn’t pay a political price for his obstruction. In fact, the strategy only galvanized the conservative base, who knew a Supreme Court seat was on the line.

McConnell then used Gorsuch’s nomination to knock down the final procedural hurdle requiring bipartisan consensus on judgeships. In 2013, Democrats–facing opposition engineered by McConnell–changed Senate rules to allow federal judges to be confirmed with a simple majority, taking away the filibuster, which required 60 votes. But they didn’t change the rules on Supreme Court nominees. So when Democrats balked at Gorsuch, McConnell convinced Republicans to scrap the judicial filibuster’s remaining vestige. “You couldn’t get anybody confirmed” without invoking the so-called nuclear option to break the Gorsuch filibuster, he explains. “Only when that was demonstrated was I able to convince my people to do what we had to do,” he says, “because we were very critical of [Democrats] for doing it three years before.”

Trump’s own participation in the selection process varies based on the court. For the Supreme Court opening, he personally interviewed four candidates, making his final decision after meeting each of them once. For circuit and district judges, the President signs off on the final decision after the interview and vetting process is complete. But Trump and his team are in sync on what they want in a nominee: judges who are originalists and textualists, meaning they interpret laws based on what they say is the original intent of the Constitution’s framers and based purely on the text, without considering shifting social values or paying much heed to legislative history. They also want judges who worry about regulations and what they see as the increasing power of unelected bureaucrats, a phenomenon McGahn calls the administrative state.

Some of Trump’s picks have a history of inflammatory statements or decisions that might have been disqualifying under the vetting procedures used by previous Republican Administrations, according to Nan Aron, head of the liberal group Alliance for Justice. “The standards are so much lower now,” she says. In fact, provocation is part of the point. In one of his rare public appearances–a speech before the Federalist Society in November at Washington’s Mayflower Hotel–McGahn joked that his team would work with two lists of potential nominees. The first list contains “mainstream” and “pragmatic folks.” The second list, he said, includes judges who are “too hot for prime time … The kind of people that make some people nervous.”

“The first list we’re going to throw in the trash,” McGahn said to laughter and applause. “The second list, that’s the one we’re going to put before the U.S. Senate, because I know leader McConnell is going to get it done.”

As promised, McConnell has delivered, successfully confirming even appellate judges with polemical pasts. One judge, Leonard Steven Grasz, was confirmed to the Eighth Circuit in December despite writing in 1996 that the legacy of landmark abortion ruling Roe v. Wade is “moral bankruptcy.” Barrett, the judge confirmed to the Seventh Circuit, wrote in 1998 that Catholic trial judges should sometimes recuse themselves from capital-punishment cases. John Bush, confirmed to the Sixth Circuit in July, used to blog about politics, spreading conspiracy theories and once comparing abortion to slavery. Liberal groups are working overtime to do their own research and pounce on what they unearth. Alliance for Justice, for example, estimates that its team reviewed 67,680 pages of records as part of its vetting process last year.

The emphasis on speed has produced a few embarrassing setbacks. Toward the end of 2017, the White House withdrew three divisive district judge nominees from consideration. Brett Talley, nominated for a district court in Alabama, came under fire for his lack of trial experience, objectionable blog posts and failure to disclose that he was married to McGahn’s chief of staff. Jeff Mateer, nominated for a district court in Texas, had once described transgender children as evidence of “Satan’s plan.” And Matthew Petersen, nominated to the district court in the District of Columbia, withdrew after he struggled to answer even basic legal questions during questioning from Republican Senator John Kennedy of Louisiana. Hammering these concerns in the hearings, says Blumenthal, is one of the only remaining points of leverage that he and other Democrats have on this issue: “There is at some point a shame level,” he says, “that the Administration cannot surmount with some of these nominees.”

Democrats have tried to gum up the confirmation process, in some cases refusing to return blue slips, a custom by which both home-state Senators sign off on nominees. They’ve also called for extra votes to extend debate time between committee hearings and final votes. But in the end, they have few tools to stop Republicans from confirming Trump’s nominees, now that the filibuster has been eliminated.

Even though the system benefits Republicans now, conservatives worry that doing away with blue slips and filibusters will inflict long-term damage on the Senate, reducing its power relative to the Executive Branch. “I wish I could tell you, Yes, it can happen in my lifetime,” Republican judiciary chairman Grassley says of returning to more bipartisan cooperation on judicial confirmations. “But I’m 84 years old. I don’t expect it to happen.”

Federal judges are supposed to be above politics. Once they emerge from a bruising confirmation process and don their black robes, the lifetime appointments purportedly protect them from the pressures and partisan transactions that plague the other two branches of government. But that has always been something of a fairy tale. Already during this young presidency, judges from all points on the ideological spectrum have had to wade directly into politically charged issues, ruling on Trump’s crackdown on sanctuary cities and iterations of his travel ban. “We have seen extraordinary levels of judicial activism in cases being decided not based on the law, but based on the judge’s view of the President,” says Severino.

Trump himself has contributed to the increasing public perception of judicial partisanship. During his campaign, he attacked a Mexican-American judge, saying his Hispanic heritage made him “hostile” to Trump’s position. In early 2017, he criticized a “so-called judge” who had halted his travel ban. (That prompted Gorsuch, then still awaiting confirmation to the Supreme Court, to call the President’s attacks on the judiciary “disheartening” and “demoralizing.”) Trump “is not somebody who cares deeply about a fair and independent justice system,” says Daniel Goldberg, legal director at Alliance for Justice.

Reaction to the impact Trump’s judges will have often splits along party lines. Nearly 70% of Americans said they had faith in the Judicial Branch in September 2017, according to Gallup, more than either of the other two branches of government. But Democrats are now less trusting of the courts than they were a year ago, while Republican faith in the system surged during Trump’s first year, from 48% toward the end of the Obama era to 79% last fall. For Republicans, Trump’s judges offer a reassuring check on government overreach and strong support of free speech, gun rights and religious-freedom issues. For Democrats, the judges’ focus on original intent and pure text of laws threatens to “turn the clock back,” Alliance for Justice’s Aron says, on issues such as workplace protections, LGBT rights and environmental regulations.

That’s already become a reality for Joseph Morrissey, who last fall lost a case before Kevin Newsom, a Trump-appointed judge on the 11th Circuit. Morrissey and his now husband sued the IRS after they were denied a tax deduction for reproductive expenses when they had a child through in vitro fertilization. The 11th Circuit case was heard in Montgomery, Ala., in August. Morrissey, a law professor at Stetson University, remembers visiting civil rights museums in the city before heading to court. “There was a real dedication to acknowledging the abuses of the past and remedying them,” Morrissey says. “I was encouraged by the things I was reading and the things I was seeing at the memorials and the museums, only to have my hopes dashed.”

Sitting in the courtroom, Morrissey says he began to feel defeated. A month later he got the news: Newsom ruled that IVF procedures weren’t related to Morrissey’s “own reproductive function,” so he wasn’t eligible to claim the deduction. “That’s what we need,” Morrissey quips during a phone interview conducted from the backseat of a minivan beside his two young kids. “A socially conservative white man in Alabama who is going to really help carry on the legacy of civil rights.”

The sarcasm reveals a simple truth about judges’ power. Each nomination, each confirmation and each opinion add up to a judicial legacy that will express itself in decades to come. That’s the lodestar for those working on judges amid the chaos of the Trump Administration: the higher mission to shape American society beyond any one policy or decision, and beyond any one President.


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