The conservative remaking of the Judiciary continues apace

Post Reply New Topic

While the tragicomic fall of Anthony Scaramucci was playing out at the White House on Monday, the mood was business as usual at the Capitol. There, the Senate was dealing with its own kind of personnel matter, one that, in the larger scheme, probably matters more than who happens to be the White House communications director of the week. To little notice, and with no fanfare, the Senate moved toward confirming another of President Trump’s appointees to a lifetime seat on the federal Court of Appeals.

In the early evening, the Senate voted to close debate on Kevin Newsom, the nominee for the Eleventh Circuit. His actual confirmation, which is now a foregone conclusion, will take place in the next few days. Newsom resembles many Trump nominees to the federal bench. He has excellent formal qualifications, including a degree from Harvard Law School, a Supreme Court clerkship, and a stint as the solicitor general of Alabama, where he excelled at defending the state’s imposition of capital punishment against legal challenges. Most notably, Newsom is also young for a federal judge—just forty-five—and a political conservative, as evidenced by his membership in the Federalist Society. In light of his age, Newsom will likely serve for decades after the Trump Presidency has concluded.

Trump has also benefitted from the greater interest that conservatives, as compared with liberals, have shown in federal judicial appointments at all levels. Republicans simply care more than Democrats do about getting their people on to the bench. Illustrating the varying priorities of the two parties, Allan Smith, of Business Insider, compared the first six months of judicial appointments under Obama and Trump. Smith found that, in this period, Trump nominated eighteen people for district-judgeship vacancies, and fourteen for circuit courts and the Court of Federal Claims. During that same period in Obama's first term, he nominated just four district judges and five appeals-court judges. In total, when U.S. Attorneys are included, Trump nominated fifty-five people, and Obama just twenty-two. Obama’s attention was, undoubtedly, distracted by a global economic implosion in 2009, but his party had a greater majority in the Senate than Trump’s does now, and still Obama failed to push through more than a handful of judges in that period.

One issue that may determine the extent of Trump’s judicial legacy is the so-called blue slip. According to Senate tradition, no judicial nominee will be approved without the consent (signified by a blue slip) of both of the nominee’s home-state senators. So far, most of Trump’s nominees have come from states that he won in 2016, and most of these states have two Republican senators. The Republican senators have submitted their blue slips with alacrity. Senator Chuck Grassley, the Iowa Republican who chairs the Judiciary Committee, has said that he will honor the blue-slip tradition when it comes to district-court nominations in states with Democratic senators. He has been less categorical about honoring blue slips for circuit-court judgeships, which cover multiple states. (When Patrick Leahy, the Vermont Democrat, chaired the committee, early in the Obama Presidency, he scrupulously honored the blue-slip standard.) Thanks to a change in the Senate rules, initiated by the Senate Democrats, in 2013, judicial confirmations require only a simple majority of fifty-one votes, not the filibuster threshold of sixty. So if Grassley decides to limit or eliminate the blue-slip tradition, he will be able to push through virtually all the nominees he puts through the system, thanks to the Republicans’ majority of fifty-two.
But, blue slips or not, Trump is poised to reshape the judiciary in a notably conservative direction, even if he doesn’t get any more appointments to the Supreme Court. Even in the best-run White House (which this one, clearly, is not), the President’s staffers come and go, but a President’s judicial appointees preside for decades. And, by this more important, if less-publicized, measure, the Trump White House is doing just fine.