In the first televised presidential debate between Donald Trump and Joe Biden in 2020, the sitting president was asked why voters should re-elect him to the White House. He gave a relatively obscure answer – it was all about the judges, he said.
By the end of his first term in office, Trump bragged, he would have smashed all records for the number of his appointments to the federal bench. “I’ll have approximately 300 federal judges.”
Characteristically, Trump was lying. He ended his single tenure having placed 231 men and women on the federal bench, including three on the US supreme court, 54 on appeals circuits and 174 on district courts.
But, despite the hyperbole, Trump still had reason to be cheerful: in one four-year term he slammed through about 30% of the entire US federal judiciary. That’s more appointments than George W Bush (156) and almost as many as Barack Obama (315) – who both had eight years.
Last week, the significance of Trump’s hyper-aggressive remodeling of the federal bench lurched into view. Aileen Cannon, who Trump nominated for the US district court for the southern district of Florida in May 2020, granted the former president his desire to have a “special master” handle thousands of documents seized by the FBI from the former president’s Mar-a-Lago club in Florida.
The ruling was greeted with astonishment by legal scholars who noted how convenient it was for Trump to give the special master control over highly classified materials. Cannon effectively erected a roadblock in front of the justice department’s criminal investigation into how national security intelligence had been illegally hidden in Mar-a-Lago.
Even William Barr, himself a former Trump appointee as US attorney general, had only harsh words. “Deeply flawed”, he said about the ruling.
But Cannon’s maverick decision is just the thin end of the wedge. From the supreme court down, the impact of Trump’s recalibration of the federal judiciary is now starting to sting.
The consequences of Trump’s three appointments to the supreme court are now well understood by many Americans. The evisceration of the right to an abortion; blocking government action on the climate crisis; rolling back gun control laws are just a few of the seismic changes wrought by the court’s new 6-to-3 conservative supermajority.
Less visible and much less well comprehended are the similarly drastic shifts that are being initiated in the lower courts by Trump-appointed judges like Cannon. “These appointments are not only tilting the law further right, they are starting to erode fundamental democratic protections,” said Rakim Brooks, president of the advocacy group Alliance for Justice.
Biden is doing what he can to push the needle back towards the centre. A review by the Pew Research Center last month found that the Democratic president had managed to surpass Trump’s rate at seating federal judges, achieving more confirmations at an equivalent point in his tenure than any president since John Kennedy.
Today Biden has confirmed a total of 81 federal judges (80 if you discount the fact that he nominated Ketanji Brown Jackson twice – first for an appeals court and then as the newest addition to the supreme court). Just how far the current president will be able to go in mitigating the rightward shift under Trump remains to be seen, with much hanging on the outcome of November’s midterm elections.
In the meantime, Trump’s judges continue to dish out eccentric and disconcerting rulings. Several of the most notable decisions are coming from southern courts, especially in Texas. Take the federal court for the northern district of Texas, where Trump’s chosen warrior, Matthew Kacsmaryk, is already stirring up a storm.
Before he was confirmed in June 2019 he was vociferously opposed by civil rights groups who pointed out his record of deriding gay relationships as “disordered” and “contrary to natural law”. True to form, in May Kacsmaryk ruled against the Biden administration, siding with extremist Texas Republicans who are challenging new anti-discrimination guidelines protecting transgender people in the workplace.
That case is ongoing. Kacsmaryk has also had a hand in trying to frustrate the Biden administration’s immigration reforms, ruling in August that Biden could not lift Trump’s highly contested “Remain in Mexico” policy in which asylum seekers were forced to stay on the southern side of the border while their petitions were processed (the supreme court later overturned his decision).
Other Trump judges have tried to shore up the former administration’s hardline immigration stance despite the fact that the man who appointed them was voted out of office. In May, Judge Robert Summerhays of the western district of Louisiana ruled that Biden could not undo the former president’s equally brutal use of Title 42, a health order resurrected during the pandemic to turn more than 1 million migrants back from the border.
Aside from the obvious rightwing bent of such rulings, the judges who issued them have another feature in common – Cannon, Kacsmaryk and Summerhays are all members of the Federalist Society. The association, under the leadership of its driven co-chairman Leonard Leo, has been at the forefront of a decades-long strategy of weaponising the federal judiciary to turn the clock back on civil rights.
Trump thanked the Federalist Society for providing him with a list of anti-abortion candidates for the US supreme court out of which he picked his three: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. On his part, Leo has been open about his ambition to revolutionise the judiciary: “I would love to see the courts unrecognizable,” he once said.
Another Federalist Society member, Kathryn Mizelle, single-handedly ended mandatory mask wearing on planes and trains across the US when she struck down the Biden administration’s mandate in April. Mizelle has the other distinction of having been Trump’s youngest appointment to the federal bench, at just 33.
It is one of the striking features of his 231 appointments that they veer to the younger end of the age scale – a point of huge significance given that federal judges have life tenure. “Trump, advised by the Federalist Society, chose ultra-conservative, very young lawyers who can shape the legal landscape for decades to come,” said Lena Zwarensteyn, senior director of the fair courts program within the Leadership Conference on Civil and Human Rights.
Mizelle’s relative lack of experience given her age was so glaring that she was rated by the American Bar Association as being unqualified for the job. The ABA noted she had only participated in two, one-day, trials before becoming a federal judge.
Voting rights is another area under siege from Trump’s judges. In February, Lee Rudofsky (a Federalist Society member) ruled in Arkansas that individuals and civil rights groups could not bring lawsuits under the Voting Rights Act.
The decision flabbergasted legal experts who said it would gut fundamental voting protections in place for more than half a century.
On the very same day Rudofsky handed down his ruling, the fifth circuit court of appeals, which covers large swaths of the south including parts of Texas, caused similar astonishment when it blocked private companies from imposing vaccine mandates. In a dissenting opinion, a moderate conservative judge on the same panel decried the ruling as “an orgy of jurisprudential violence”.
The fifth circuit’s action points to another threat posed by Trump. Many of his judicial appointments were to appeals courts, which have an even greater influence in shaping public life in the US than district courts.
He placed six judges on the fifth circuit – more than any other president before him – in a move which effectively neutralized moderate conservatives on the panel and gave extreme rightwingers the controlling hand. He managed to seat a similar number on the 11th circuit, which is likely to play a critical role in hearing appeals arising from Trump’s battle with the justice department over the Mar-a-Lago search.
Herein lies a problem for Biden as he battles to rebalance the federal judiciary – how to dilute the influence of ideologically motivated judges on the powerful appeals courts where vacancies rarely arise. “On appeals circuits like the fifth and the 11th, Republicans have a stranglehold and they are launching their offensive on the constitution from there,” Brooks said.
There are signs of hope for Biden as he looks ahead. He has a further 60 nominees already going through the confirmation process.
But the president is racing against the clock. Should the Democrats lose their paper-thin majority in the evenly divided US Senate (Vice-President Kamala Harris currently holding the casting vote), then all bets are off.
Mitch McConnell, the Republican minority leader in the Senate, has already demonstrated how ruthless he can be in blocking Democratic judges – he notoriously prevented Obama from seating Merrick Garland on the supreme court in 2016. Should he regain control of the chamber in November’s midterm elections, he is unlikely to be any more amenable.
Sheldon Goldman, professor emeritus at the University of Massachusetts at Amherst, puts the challenge ahead in dystopian terms. “If Republicans regain control of the Senate, then all civil libertarian progress will come to a halt.”