WASHINGTON — With another judge expected to be confirmed Tuesday by the Senate, President Donald Trump and Senate Republicans are leaving an ever-expanding imprint on the judiciary, nudging powerful appeals courts rightward through a determined effort to nominate and confirm a steady procession of young conservative jurists.
The confirmation of Judge Brett M. Kavanaugh to the Supreme Court would tilt the balance of the nation’s highest court, but, already, the president and the Senate have proved strikingly efficient at installing judges to lifetime appointments on appeals courts that handle far more cases.
The expected appeals court confirmation on Tuesday of Britt C. Grant, 40, a Georgia Supreme Court justice who was once a clerk for Kavanaugh, would be Trump’s 24th circuit court appointment — more than any other president had secured at this point in his presidency since the creation of the regional circuit court system in 1891, according to an analysis of judicial records by The New York Times. The Senate did not confirm President Barack Obama’s 24th nominee to the regional circuit courts until the fourth year of his presidency.
Of the 167 spots on those courts nationwide, Trump nominees already fill more than one of every eight, though the majority of those nominees replaced judges who were also appointed by Republican presidents.
Some of the jurists confirmed generated controversy. Judge L. Steven Grasz of the 8th U.S. Circuit Court of Appeals was rated by the American Bar Association as “not qualified” before the Senate approved his nomination last year.
Judge John K. Bush of the 6th U.S. Circuit Court of Appeals, whom the Senate also confirmed last year, mused about politics in blog posts written under a pseudonym. One of Bush’s missives cited abortion alongside slavery as “the two greatest tragedies in our country.” Another suggested that a reader of the blog from Kenya was a relative of Obama’s.
Judge Kyle Duncan of the 5th U.S. Circuit Court of Appeals, who was confirmed this year, once wrote that the Supreme Court’s landmark decision establishing a constitutional right to same-sex marriage “imperils civic peace.”
And 10 more Trump nominees for appeals courts are still wending their way through the Senate confirmation process.
“I think it’s the longest-term sort of impact we can have on the future of the country,” Sen. Mitch McConnell, R-Ky. and the majority leader, said in an interview.
Amid the drumbeat of Trump administration controversies — on trade policy, Russian election interference and threatened government shutdowns, to name a few — the installation of judges has proceeded apace, unifying Republican senators.
If Democrats gain control of the Senate in the fall midterm elections, “the confirmation of every circuit judge is going to come to pretty much a screeching halt,” said Russell Wheeler, a visiting fellow at the Brookings Institution who studies the federal judicial selection process.
“It’ll be payback: ‘You didn’t confirm our people back when Obama was in office, so here you go,'” he said.
For now, though, the Republican Party’s assembly line success at approving judges stands as a contrast to the disarray or inaction that some of the president’s other priorities on Capitol Hill have been met with, such as repealing the Affordable Care Act, building a wall on the southwestern border and passing an infrastructure package.
“This president has not encountered great success in enacting much legislation beyond the tax cuts,” said Nan Aron, the president of the Alliance for Justice, a liberal advocacy group. “One gift he can give to his base are judges. It’s his way of maintaining their loyalty and energizing them for the next election.”
In 2013, when Democrats controlled the Senate, they ended the ability of the minority party to filibuster most presidential nominations. The move allowed them to confirm three Obama nominees, who had been blocked by Republicans, to the powerful federal appeals court in Washington. (Last year, Republicans went a step further and ended filibusters for Supreme Court nominees, as well.)
After Republicans took control of the Senate in the 2014 midterm elections, they essentially shut down the judicial confirmation process: In addition to denying a hearing for Obama’s Supreme Court nominee, Merrick B. Garland, in 2016, they confirmed only one judge to the regional appeals courts during Obama’s final two years in office.
That left many vacancies for Trump to fill, and Democrats have been left with little recourse other than to vent their frustrations.
“Humming in the background of the Senate’s more newsworthy business, the Republican majority has confirmed a conveyor belt of nakedly partisan ideological judges to the bench,” Sen. Chuck Schumer of New York, the Democratic leader, said recently on the Senate floor.
McConnell takes that kind of Democratic criticism as a compliment.
“I appreciate their attention to it,” he said wryly. “They’ve noticed it’s my top priority.”
The judges will be leaving their mark on the court system long after Trump has left the White House. The average age of Mr. Trump’s first-year circuit court nominees was 49, according to the Congressional Research Service, younger than the first-year nominees of Presidents Obama, George W. Bush and Bill Clinton. The vast majority of the Trump nominees were white, and most were male.
The sprint to install nominees on the circuit courts has proved to be a fruitful collaboration between the White House counsel, Donald F. McGahn II, and Senate Republicans, particularly McConnell and Sen. Charles E. Grassley of Iowa, the chairman of the Judiciary Committee.
But Senate Democrats say the chamber has cast aside Senate tradition by plowing ahead with circuit court nominees even if one or both senators from a judge’s home state are opposed.
The dispute centers on a custom known as the blue-slip process, for the blue form that home-state senators use to communicate whether they approve of a judge’s nomination. The weight carried by blue slips has varied over the years, but Grassley has a looser policy than the last Democrat to lead the Judiciary Committee, Sen. Patrick J. Leahy of Vermont.
Since Trump took office, Grassley has held hearings for a circuit court nominee from Minnesota and another from Wisconsin over the objections of a Democratic senator from each state, Al Franken of Minnesota and Tammy Baldwin of Wisconsin. The two nominees were later confirmed. And two weeks ago, the Senate was on the brink of confirming a nominee from Oregon, Ryan W. Bounds, even though the state’s senators, Ron Wyden and Jeff Merkley, both Democrats, opposed him.
Bounds had faced criticism over inflammatory writings from his college days, including a column in which he derided “race-focused groups” on campus and “race-think.” At the last minute, his nomination was pulled after Sen. Tim Scott of South Carolina, the only black Republican in the chamber, raised concerns and would not support him.
That unexpected turn of events offered a reminder that Republicans have no room for error in pushing judges through the Senate if Democrats are united in opposition, given the chamber’s 51-to-49 divide and the continuing absence of Sen. John McCain, R-Ariz., who has brain cancer.
Wyden quickly expressed hope that the fate of Bounds’ nomination would affect how Republicans handle judicial nominations in the future. But Grassley appears unmoved, at least regarding his policy on blue slips.
“That has nothing to do with it,” Grassley said. “Whether they had returned the blue slips or not, there were other issues, and that’s where we have to leave it.”
There are more judicial fights on the horizon. Sen. Maria Cantwell, D-Wash., quickly came out against a circuit court nominee from her state whom the White House announced this summer. Sen. Sherrod Brown, D-Ohio, opposes two circuit court nominees from his state, though Ohio’s other senator, Rob Portman, a Republican, supports them. Sen. Bob Casey, D-Pa., opposes a nominee from his state who has the support of Sen. Patrick J. Toomey, a Republican.
“I think it is going to shift at least some of the circuit courts to courts that will have a greater respect for the limited role that judges are supposed to play in our constitutional system,” Toomey said of his party’s effort to put in place appeals court judges. “The left has been systematically using the courts as a sort of superlegislature, and the folks that we are confirming are not going to abuse their power that way.”
In New Jersey, the state’s senators, Robert Menendez and Cory Booker, both Democrats, have yet to take a position on a circuit court nominee whom the White House has put forward, though Booker has said he has concerns. The nominee, Paul B. Matey, was deputy chief counsel for Chris Christie, a Republican, when he was governor.
“I wasn’t consulted — they just gave the name,” Menendez said.
There is, of course, an obvious risk to the Republicans’ eagerness to install judges: If the Democrats control the Senate and the White House, they may display a similar zeal.
“Oh, heck yeah,” said Sen. Richard C. Shelby, R-Ala. “We learn from each other.”
This article originally appeared in The New York Times.
Thomas Kaplan © 2018 The New York Times