Courts

Trumping Justice: Inside The President's Successful Transformation Of The Federal Judiciary

President Trump's judicial appointments will be the most important and longest-lasting aspect of his legacy.

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President Donald Trump looks on as his second SCOTUS nominee, Judge Brett Kavanaugh, accepts the nomination (photo by Jabin Botsford/The Washington Post via Getty Images).

This week hasn’t been a great one for President Donald Trump when it comes to legal news. On Tuesday, Trump’s former campaign manager, Paul Manafort, was convicted on eight counts of financial crimes. The same day, Trump’s former personal lawyer, Michael Cohen, pleaded guilty to eight criminal counts of his own, including tax fraud, false statements to a bank, and campaign finance violations.

But August has been good to the administration on a different legal front: Trump’s triumphant transformation of the federal judiciary. Last week, Marvin Quattlebaum and Julius “Jay” Richardson won confirmation to the Fourth Circuit, becoming the the 25th and 26th appeals-court judges confirmed during the Trump Administration, respectively — and increasing Trump’s already record-setting number of appellate judges confirmed during a president’s first two years. [UPDATE (8/27/2018, 1:37 p.m.): The preceding sentence has been revised to accurately state Trump’s record (which relates to appellate judges rather than total Article III judges, and which relates to a president’s first two years rather than an entire first term).]

In an interesting and in-depth article in the New York Times Magazine, political reporter Jason Zengerle takes a deep dive into what I believe will be the most important and long-lasting legacy of President Trump: his judicial appointments. From the piece:

[A] radically new federal judiciary could be with us long after Trump is gone. Brian Fallon, a veteran Democratic operative who leads Demand Justice, a group formed to help Democrats with research and communications in the judicial wars, says, “We can win back the House this November, we can defeat Trump in 2020 and we’ll still be dealing with the lingering effects of Trumpism for the next 30 or 40 years because of the young Trump-appointed judges.”

And if Trump is re-elected? Newt Gingrich, who during the 2016 campaign began emphasizing the importance of judges to Trump, posits: “He could, by the end of his time in office, be the most important president since Franklin Delano Roosevelt in shaping the judiciary.”

Who deserves the credit for appointing such young, smart, and conservative judges to the federal bench?

First, much credit goes to the White House Counsel, Don McGahn, and his team. While media outletsfixate on such things as what he might or might not have told special counsel Robert Mueller, McGahn and his colleagues continue to quietly go about their critical work of transforming the third branch. As Zengerle puts it:

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In a White House known for chaos and dysfunction, the counsel’s office, under McGahn, is generally viewed as an island of competence. “The White House is like a Dante’s ‘Inferno’-strange comedy,” says one leading conservative lawyer who requested anonymity for fear of reprisal, “but the people in the counsel’s office are like the A-Team.”

Second, credit must be given to the Federalist Society, its leaders, and especially executive vice president Leonard Leo, given their key role in selecting such solid nominees. Most notably, Leo took the lead in putting together the two Supreme Court shortlists that Trump released while still on the campaign trail, which helped reassure conservatives that he could be trusted on judges:

Trump might not have known much about the law, but he needed, as Gingrich told me, to create the impression that he “would be reliable in terms of conservative judges, because that would calm down and consolidate a very large bloc of his coalition.” That is, what mattered to the Federalist Society — and the Heritage Foundation — was that Trump take their advice on judicial nominees. In an interview with Breitbart in June 2016, Trump pledged, “We’re going to have great judges, conservative, all picked by Federalist Society.”

Leo also figured out what mattered to Trump. “Leonard is smart,” says David Lat, the founding editor of the influential legal website Above the Law and a former Federalist Society member.[1] “He knows the way to Trump’s heart is through his ego.”

My quoted observations here are true as far as they go, but they’re an understatement. I’d say that Leo is nothing short of brilliant, in terms of selecting potential judges, getting them confirmed, and making sure that the mercurial Trump stays the course on judicial nominations. And that final skill of Leo’s — his ability to serve as “Trump whisperer,” understanding all the quirks of the president’s personality and how to work with them — might be the most important of all.

Third, credit belongs to the Senate Republicans and in particular to Senator Mitch McConnell. Senator McConnell’s commitment to fast-tracking judicial nominations to circuit courts is a well-known component of the administration’s success on judges, but that’s not his only contribution. As Zengerle points out, one reason that Trump inherited so many judicial vacancies is because Senator McConnell and his caucus successfully blocked so many of President Barack Obama’s judicial nominations — most famously Judge Merrick Garland’s nomination to the Supreme Court, but lots of lower-court nominations as well.

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Democrats might decry such obstruction, but complaining by itself won’t change the superior track record of Republicans on judges. Zengerle quotes a number of prominent progressive figures, such as Christopher Kang, a former Obama Administration lawyer who worked on nominations, and Brian Fallon, a former aide to Senator Chuck Schumer who now leads Demand Justice, who acknowledge that Democrats need to be more committed, more savvy, and more brass-knuckled when it comes to the judiciary.

Finally, credit must go to, yes, Trump himself. As I told Zengerle:

“A lot of the things that make Trump so loathsome [to some] as a person and a politician,” David Lat notes, “are why he’s been nominating judges who are such great conservatives.”

Allow me to expand upon this a bit, since this isolated quotation doesn’t fully explain my views. Here’s a better way of phrasing my point: much of what some people find so problematic about Donald Trump, as both a person and a politician, is why he has been so successful at appointing brilliant, youthful, conservative jurists to the federal bench.

Here are some common complaints about Trump — and how they translate into success on judicial nominations.

“Trump is ignorant, incurious, and lazy.” Trump might not understand, say, the subtleties of Chevron deference, or the differences between originalism, textualism, and strict constructionism. But he knows what he doesn’t know, at least when it comes to judges, which is why he has wisely given the White House Counsel’s Office and the Federalist Society much freer rein than even prior Republican administrations to pick solid judges.

“Trump alienates many members of his own party, including leading figures in the Republican Establishment. When Trump came into office, having won the presidency without much support from traditional Republican quarters, he had many fewer allies that he needed to reward with judgeships for themselves or their friends. So Trump could focus on picking judges based on “merit” — here defined as conservatism, credentials, and youth — as opposed to the patronage-type considerations of a more traditional candidate. (Indeed, in a few cases, his administration has ticked off some Republican senators with its judicial picks, by passing over blandly competent, senatorial selections in favor of young legal superstars.)

“Trump can’t work with Democrats; he’s one of the least bipartisan presidents ever.” In fairness to the Trump Administration, there have been some situations where the White House worked with blue-state senators to come up with slates of judicial nominees that enjoy bipartisan support (e.g., Illinois and New York). But there’s also some truth to complaints from Democratic senators that this White House hasn’t given them as much say over judicial appointments as past administrations — which has resulted in some of the strongest appointments from the Trump Administration.

As Leonard Leo explained to Jason Zengerle, “This administration is trying to hit as many triples and home runs as possible.” And, notwithstanding a few high-profile exceptions, it’s succeeding.

So go ahead, Trump haters, and gloat over Paul Manafort, Michael Cohen, Stormy Daniels, and all the rest of President Trump’s embarrassments and headaches. Because decades later, when their names have been reduced to trivia-question answers, Trump’s life-tenured judges will still be on the circuit courts and the Supreme Court, issuing authoritative interpretations of the Constitution and laws of the United States that bind us all.

[1] I’m a former rather than current member of Federalist Society not because of any change in my jurisprudential views, but because, as a journalist, I prefer not to belong to organizations that I sometimes cover (which is also why I’m no longer a member of the American Bar Association). But I still consider myself a Fed Soc “sympathizer,” an originalist and a textualist when it comes to constitutional and statutory interpretation, and I still participate in events sponsored by the Society and its chapters, which feature speakers from across the ideological spectrum.

Next Wednesday, for example, I’ll be speaking about Trump’s judicial appointments to the Yale Federalist Society, joined by Linda Greenhouse, former Supreme Court correspondent and current SCOTUS columnist for the New York Times. The event is free and open to the public, for anyone in New Haven who might want to attend.

How the Trump Administration Is Remaking the Courts [New York Times Magazine]

Earlier:

DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].

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