By CHARLIE SAVAGE
WASHINGTON – In the weeks before Donald Trump took office, lawyers joining his administration gathered at a law firm near the Capitol, where Donald F. McGahn II, the soon-to-be White House counsel, filled a white board with a secret battle plan to fill the federal appeals courts with young and deeply conservative judges.
McGahn, instructed by Trump to maximize the opportunity to reshape the judiciary, mapped out potential nominees and a strategy, according to two people familiar with the effort: Start by filling vacancies on appeals courts with multiple openings and where Democratic senators up for re-election next year in states won by 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. Trump has 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 – 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 Trump’s 18 appellate nominees, 14 are men and 16 are white.
While the two parties have been engaged in a tit-for-tat escalation of hardball politics over judicial nominations since the Reagan years, the Trump administration is completing a fundamental transformation of the enterprise. And the consequences may go beyond his chance to leave an outsize stamp on the judiciary. When Democrats regain power, if they follow the same playbook and systematically appoint outspoken liberal judges, the appeals courts will end up as ideologically split as Congress is today.
“It’s such a depressing idea, that we don’t get appointments unless we have unified government, and that the appointments we ultimately get are as polarized as the rest of the country,” said Lee Epstein, a law professor and political scientist at Washington University in St. Louis. “What does that mean for the legitimacy of the courts in the United States? It’s not a pretty world.”
For now, conservatives are reveling in their success. During the campaign, Trump shored up the support of skeptical right-wing voters by promising to select Supreme Court justices from a list 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,” Trump said at the White House recently, adding that many more nominees were in the pipeline. Standing beside Senate Majority Leader Mitch McConnell, R-Ky., he continued, “There has never been anything like what we’ve been able to do together with judges.”
Appellate judges draw less attention than Supreme Court justices like Neil Gorsuch, whom Trump installed in the seat that Scalia’s death left vacant and that Republicans, led by McConnell, refused to let Obama fill. But the 12 regional appeals courts wield profound influence over Americans’ lives, getting the final word on about 60,000 cases a year that are not among the roughly 80 the Supreme Court hears.
Nan Aron, of the liberal Alliance for Justice, said her group considered many of Trump’s nominees to be “extremists” – hostile to the rights of women, minority groups and workers, and unduly favorable to the wealthy. But conservatives, who have rallied around Trump’s nominees as a rare bright spot of unity for the fractious Republican Party, see them as legal rock stars who will interpret the Constitution according to its text and original meaning.
And they see tremendous opportunity in the fact that Trump is the first Republican president whose nominees can be confirmed by simple-majority votes, especially since he is likely to fill an unusually large number of vacancies. Trump started with 21 open appellate seats because after Republicans gained control of the Senate in 2015, they essentially shut down the confirmation process. Six additional appellate judgeships have opened since his inauguration, and nearly half the 150 active appeals court judges are eligible to take senior status – semiretirement that permits a successor’s appointment – or will soon reach that age, according to Russell Wheeler, a Brookings Institution scholar.
As a result, 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 U.S. 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 Trump on courts who is the executive vice president of the Federalist Society.
Liberals have accused Trump of outsourcing his nominations process to the Federalist Society. But two administration officials argued that this claim misunderstands how the conservative legal movement has matured as the generation of Republican lawyers shaped by reading the originalist dissents of Scalia and by the bitter 1987 fight over Judge Robert H. Bork’s failed Supreme Court nomination has come of age. McGahn and nearly all the lawyers working for him at the White House are longtime society participants, so relationships built on the network of like-minded conservatives saturate discussions of potential nominees from the inside, they said.
Trump has also had help from the Senate Judiciary Committee chairman, Charles E. Grassley, R-Iowa, in lowering impediments and keeping the confirmation assembly line moving.
For example, confirmation hearings have usually featured just one appellate hopeful at a time (along with several district judge nominees). But Grassley has scheduled three hearings this year with two appellate nominees – as many as took place during all eight years of the Obama administration, according to congressional aides.
The independent guardrail role of the American Bar Association, which has vetted potential judges since the Eisenhower administration – conducting confidential interviews with people who worked with them and rating their experience, integrity and temperament – is also weakening. Picks by presidents of both parties have sometimes run into trouble, but Republicans have accused the group of bias against conservatives.
Traditionally, the group’s volunteers vet potential judges before the White House decides whether to send their names to the Senate, but Trump – like President George W. Bush – exiled it from that role, leaving it scrambling to evaluate nominees afterward. This year, Grassley has held hearings for four district judge nominees before the group finished its work – which happened with only seven during the eight Bush years.
The bar group later deemed two of them unqualified to be trial judges, saying they lacked sufficient trial experience. On Thursday, the Judiciary Committee nevertheless advanced both to the Senate floor. One, Holly Teeter, a 38-year-old federal prosecutor who fell just shy of the bar group’s minimum standard of 12 years of experience, gained bipartisan approval. But the other, Brett Talley, a 36-year-old with virtually no trial experience who wrote politically charged blog posts on topics like gun rights, drew a party-line vote.
Republicans may go further in ousting the group from its semiofficial gatekeeping role after it rated L. Steven Grasz, Trump’s nominee for the appeals court in St. Louis, as “not qualified” to be a judge, portraying him as “gratuitously rude” and unlikely “to separate his role as an advocate from that of a judge” on matters like abortion. The White House is weighing telling future nominees not to sign confidentiality waivers that give ABA evaluators access to disciplinary action records and not to interview with the bar group, an official said.
Conservatives are also pressuring Grassley to reduce one of the few remaining constraints on letting a president with an allied Senate majority appoint whomever he wants to a life-tenured judgeship: the Judiciary Committee’s “blue slip” practice, named for the color of the paper that senators use to sign off on nominees for judgeships in their states.
While it has been handled differently in different eras, throughout the Obama years, Grassley and his Democratic predecessor, Sen. Patrick J. Leahy of Vermont, refused to let the confirmation process proceed for nominees without two positive blue slips. That approach forces presidents to consult with senators and, when they are from opposite parties, incentivizes the compromise selection of relative moderates.
Sen. Al Franken, D-Minn., has announced he will not return a blue slip for David R. Stras, an appeals court nominee who is a Minnesota Supreme Court justice and is on Trump’s short list for the U.S. Supreme Court, saying he was not meaningfully consulted and objected to him. (An administration official said the White House had primarily negotiated with Minnesota’s senior senator, Amy Klobuchar, a Democrat who did turn in a blue slip.) Conservatives want Grassley to hold a hearing anyway.
Democratic senators in Oregon and Wisconsin have also not turned in blue slips for pending appellate nominees, but the question of how much control senators will retain over judicial appointments in their states is not limited to partisan politics.
Sen. John Kennedy, R-La., has not returned a blue slip for Kyle Duncan, an appeals court nominee who represented conservative clients in several culture-war cases, including whether corporations may refuse to provide contraception coverage to employees based on owners’ religious beliefs, and whether transgender students may be barred from using the school bathrooms of their gender identities.
The Judicial Crisis Network, an opaquely funded group that runs ads pressuring Democratic senators not to block Trump nominees, has begun broadcasting ads in Louisiana supporting Duncan.
Franken warned that if the blue-slip constraint eroded, Republican senators would lose, too – and not just when Democrats regained power.
But many conservatives want to take full advantage of their window of opportunity. Leo, of the Federalist Society, said Trump had instructed his transition team to prioritize appointing conservative judges who would be “strong” and could resist “tremendous political and social pressure.”
Trump “understood that the American people cared about judges, and he for his own purposes cared very deeply about it and recognized that he could be a president who could help restore the judiciary to its proper role,” he said.