Donald Trump

Trump Is Starting to Leave His Mark on the Federal Courts

The Senate just confirmed two more of Trump's judicial picks.

|

Fred Schilling, Collection of the Supreme Court of the United States

President Donald Trump has yet to score a significant legislative victory. But there is one area of American politics in which the Trump administration has been winning big: federal court appointments.

So far the U.S. Senate has confirmed 10 of Trump's judicial nominees. U.S. Supreme Court Justice Neil Gorsuch has understandably received the most attention. But Trump's lower court picks are extremely important, too. Keep in mind that the Supreme Court decides only 75 cases or so each term. Meanwhile, the federal appellate courts rule on a great many more, and plenty of their decisions are never reviewed by SCOTUS.

The Trump administration is beginning to leave its mark on these lower federal courts. This week, the Senate confirmed Notre Dame law professor Amy Coney Barrett to serve on the U.S. Court of Appeals for the 7th Circuit. The Senate this week also confirmed Michigan Supreme Court Justice Joan Larsen, an advocate of broad executive power, to serve on the U.S. Court of Appeals for the 6th Circuit. Barrett and Larsen follow Trump appointees Amul Thapar, who was confirmed to 6th Circuit in March; John K. Bush, who was confirmed to 6th Circuit in July; and Kevin Newsom, who was confirmed to the 11th Circuit in August.

As things stand now, there are over 100 federal appellate and district court vacancies for Trump to fill. And according to Senate Majority Leader Mitch McConnell, he intends to steer Trump's nominees to Senate confirmation as quickly as possible.

What do Trump's judicial picks mean for the future of American law? It depends on the pick.

On the surface, Trump's nominees can all be described as "conservative." But the similarities start breaking down upon closer examination. Some of them, for example, have written in support of extensive government power to regulate economic activity, while others have insisted that economic liberty deserves far more protection from the courts than it currently receives. Such differences reflect longstanding intellectual divisions over constitutional law and judicial philosophy within the ranks of the conservative legal movement.

And let's not forget the possibility of another Supreme Court vacancy. The current justices are not getting any younger and the chance exists that one or more of them will die or retire in the near future. If that departing justice was appointed by a Democratic president, or happens to be named Anthony Kennedy, you can expect all hell to break loose over the prospect of Trump tipping the Court's balance in a more rightward direction.

NEXT: Too Many Americans Languish in Jail Waiting for Trials, but Reforms Are Coming

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Conservatives are a mixed bag who actually think about the law and come to differing conclusions and have differeing philosophies about it. Liberals are not. Liberals are part of the hive mind and can be depended upon to do whatever is necessary to advance the cause. To take the Supreme Court for example, you could take the five “conservative justices” and find disagreements about an enormous variety of topics. The four liberal justices, however, are more or less carbon copies of each other. Sototmayor will occasionally differ with the other liberal justices on criminal law issues but that is about it. Basically, every liberal judge is Elana Keagan in pants or a skirt.

    1. I don’t think the data quite supports that conclusion.

      Perhaps you are just more aware when you disagree with a conservative justice than when you agree with a liberal vote.

      http://www.nytimes.com/interac…..rates.html

      1. It absolutely supports that conclusion.

        The 3 most liberal justices (RBG, Sotomayor, Kagan) vote together an average of 92.3% of the time.

        The 3 most conservative (Thomas, Scalia, Alito) vote together an average of 89.3%.

        Obviously, those are close, but you can see in the graphic that the closer you are to the top left the darker the boxes are and they fade out evenly. On the right, it is darker in the corner, but people like Alito agree with Roberts more than Thomas or Scalia which leads to an island of darker marks in the middle.

        Additionally, among the 4 most liberal justices the lowest level of agreement is Breyer with RBG or Sotomayor at 89%. On the right 4 it’s Alito and Scalia at 86%, but that ignores the fact that Kennedy is supposedly a right-wing justice and he agrees with Breyer as much as he does with Scalia.

        Those numbers seem close, but that’s partially because so many rulings are near unanimous. It would be far more illustrative if they re-zeroed it at 66% (the lowest concurrence between Thomas and RBG) and then looked at that remaining 34%.

        Finally, even the agreements in outcome don’t necessarily show concurrence in reasoning and that is especially more divergent on the right than the left, I think.

  2. “Some of them, for example, have written in support of extensive government power to regulate economic activity.”

    Oh, dear, let’s leave those vacancies open until the Democrats take over the Senate or the White House! Then maybe we can get a judge who cares about economic liberty!

  3. If that departing justice was appointed by a Democratic president, or happens to be named Anthony Kennedy, you can expect all hell to break loose over the prospect of Trump tipping the Court’s balance in a more rightward direction.

    How could the court “tilt more right”? The only way it tilts left is when Kennedy decides to vote with the liberals, which doesn’t happen often. The cases where Kennedy voted with the liberals to make a five four majority will be in serious perril when the old goat finally retires or the Notorious RBG finally keels over. Hmm, what cases might those be? Anyone?

    1. 2nd Amendment

      1. I’m guessing he was thinking abortion. Which is really my only reservation about conservative appointees at this point. But I think I’ll take abortion being kicked back down to the states if it means better consideration of the 1st and 2nd amendments. I don’t have a ton of hope for the 4th and 5th in any case.

        1. My only reservation as compared to potential progressive appointees, anyway. I’ve always got reservations.

  4. How is Reason not reporting on the updates on Team Red tax plan announced today?

    NYT and the balance provide conflicting info on what the proposed new tax brackets are. I would like to know what is what!

    1. The squirrels sugarfree’d my lynx. Attempt 2:
      The Balance:
      https://tinyurl.com/yao4l3hx
      NYT:
      https://tinyurl.com/ybxfthvx

      1. Protip. Instead of tinurls, which many people won’t click, simply remove the s from https and the reason server will autocondense.

        1. Or use Hyperlink tags:

          < a href="Put your link here"> Put whatever text you want for your link here < \a>
          Example of your link:

          < a href="https://www.thebalance.com/trump -s-tax-plan-how-it-affects-you-4113968"> Hill-Dawg continued to exist today. Half of nation revolts < \a>
          And actually putting it into action, just copy the middle link and remove the space between the < and the a and \a:Hill-Dawg continued to exist today. Half of nation revolts

          1. How the hell has Reason still not got https figured out?

  5. “This week, the Senate confirmed Notre Dame law professor Amy Coney Barrett to serve on the U.S. Court of Appeals for the 7th Circuit.”

    But…but “the dogma lives loudly” within her and that’s bad.

    I don’t really care what her judicial philosophy is. She deserves the seat just to spite the bigots, who happen to be sitting Senators, that are imposing religious tests on these nominees.

    1. If she were a Muslim who was down with female genitile mutilation and shiria law, they would see her appointment as a shining example of tolerance and diversity. But a filthy Papist? Some things are just not allowed. You think I am kidding but that is exactly how they think.

      1. Roy Moore was rightfully attacked for saying that ‘Muslims shouldn’t be allowed to hold elected office’. That should disqualify him from a Senate seat. But, the silence about the same religious tests being imposed by Sanders, Feinstein, Whithouse, and Durbin is beyond disgraceful.

        1. Sanders, Feinstein and company are much worse than Moore. You may disagree with more but there is a rational case for the proposition that Islam is so fundementally incompatable with American values that its adherence could never be fit for public office. There is no rational case to be made that the same can be said of Catholics. Sanders, Feinstein and company have no reason beyond blind hatred and bigotry.

          1. Couldn’t disagree more

            1. You don’t think there is any rational case that Islam is incompatable with American values? None? Not even somethign like Wahabiism?

              I forget sometimes just how much Libertarians love Islam.

              1. John, I always get 90% of the way in agreeing with you and then you say something that completely turns me off.

                It’s not about loving Islam. It’s about not believing that one’s faith makes them incompatible with behaving professionally or performing the duties of their job. It’s the silly notion that people should be viewed as individuals and not representatives of some homogeneous group. And it’s about the crazy notion that imposing religious tests on people is reactionary and rooted in bigotry.

                1. It’s the silly notion that people should be viewed as individuals and not representatives of some homogeneous group.

                  We are talking about religion here, not favorite colors. The whole point is belonging to something greater than yourself.

                  I don’t think Muslims should be disallowed from holding elected office, but only because I think there is a decent chance that a non-devout Muslim would run…just like non-devout Christians run for office all the time in this country. Their views may not necessarily reflect their stated religion. But Islam is not like Christianity. They actually believe you can’t be a good Muslim in a non-Muslim country. They are very similar to progressives.

                  1. (A) not all Muslims believe that, regardless of what you want to assert.
                    (B) many American Christians have a similar belief, regardless of what you want to assert.

                    Bottom-line? If thou get to roll-up all the branches of a religion and judge then by your least favorite, so does everyone else. And it wasn’t Muslims in America that passed and defended sodomy laws.

                    1. “And it wasn’t Muslims in America that passed and defended sodomy laws.”

                      It wasn’t Christians either. You’re like the reverse of John. If you want to pretend like sodomy laws were religiously influenced rather than accepting the fact that codifying sexual mores has existed in nearly every civilization since the dawn of time, then you’re just dumb.

                    2. the fact that codifying sexual mores has existed in nearly every civilization since the dawn of time,

                      But hasn’t that usually been done by means of religious prohibitions? It’s not something specific to Christians, but in the US it was Christians who made sodomy illegal because it was considered sinful, no? It certainly wasn’t Jews of Muslims or atheists passing morality laws in the 19th century.

                2. And it’s about the crazy notion that imposing religious tests on people is reactionary and rooted in bigotry.

                  Not to mention that religious tests before being allowed to hold office is unconstitutional.

                3. I see Islamism as a reason to vote against them. Not a reason to ban.

              2. I forget sometimes just how much Libertarians love Islam.

                I don’t. Islamofascism is not conducive to freedom. See muslim theocracies as examples.

                1. *Theocracies* are not conducive to freedom. Which religion is in charge is pretty irrelevant.

                  1. Reverse John, how are Christians ‘in charge’ in America? When is the last time that Christians has gotten the government to impose their beliefs? Is this the 1900’s?

              3. I forget sometimes just how much Libertarians love Islam.

                Nothing says Libertarian quite like theocratic totalitarianism

            2. It amazes me that there are people out there who wake up every day and think “there is no difference between Catholcism and Islam and there is no rational way to conclude Islam or any of its strains could ever be incompatable with Western values or a free society. It is one thing to think “well sure Islam has bad strains and some Muslims reject freedom in the name of their religion but not all or even most do”. That is a reasonable position. But, it just dumfounds me how people can think that there is no reason to think Islam as a whole might be qualitiatively different and more incompatable with freedom than other religions. But that is the general consensus among the Libertarians on here. All I can say is wow.

          2. Catholics have an allegiance to a foreign head of state (and one with dictatorial powers, no less). I don’t think that disqualifies them from office, but it’s as rational an argument against their fitness for office as any against Muslims in general.

      2. I support the banning of Papists!

        1. I support referring top them as “Papists” at every opportunity because it’s funny.

  6. you can expect all hell to break loose over the prospect of Trump tipping the Court’s balance in a more rightward direction.

    Given the hissy fit that was thrown over replacing Scalia, a “conservative” justice with Gorsuch, I would expect flood of progressive tears of biblical proportions..

    1. Too bad they ended the fillibuster.

    2. It will be glorious!

  7. Minus the supreme court — are the rest of judicial appointments fairly constant for all presidencies? Or are the number of appointments to the lower courts random as well? With some presidents appointing a bunch and others appoints a few.

    1. IIRC, part of the reason Trump has such a large backlog is the Senate was dragging it’s feet on Obama’s appointees.

      But I believe it’s also based on vacancies: someone quit, retired, died, and so-on.

  8. “”Trump Is Starting to Leave His Mark on the Federal Courts””

    Is this another pee story?

  9. “…you can expect all hell to break loose over the prospect of Trump tipping the Court’s balance in a more rightward direction.”

    I can’t wait for all hell to break loose. And then remind Democrats of just who invoked the “nuclear option.” Filling the Obama judicial vacancies will be a legacy indeed and do a lot to keep progressivism in it’s Pandora’s Box for a few more generations.

    1. do a lot to keep progressivism in it’s Pandora’s Box for a few more generations.

      Personnel is policy

  10. So much winning!

Please to post comments

Comments are closed.