MENU

Reason.com

Free Minds & Free Markets

Trump Picks Record Number of New Judges

Assessing the president’s lower-court selections.

Gage Skidmore / Flickr.comGage Skidmore / Flickr.comPresident Donald Trump has set a new record. Since entering the White House in January 2016, Trump has had 24 judicial nominees confirmed to the federal appellate bench by the U.S. Senate. That's the highest number of federal appellate court judges ever confirmed during a president's first two years in office.

What do these new judges mean for the future of American law? It depends on the judge.

Take Joan Larsen, who was confirmed to the U.S. Court of Appeals for the 6th Circuit in November 2017. Among her past writings is a strong defense of executive power, including the use of presidential signing statements by her old boss, President George W. Bush. "If circumstances arose in which the law would prevent him from protecting the nation," Larsen wrote, summarizing the thrust of one such signing statement, Bush "would choose the nation over the statute."

In other words, Larsen defended Bush for claiming the unilateral authority to ignore the text of the very statute he had just signed into law. This suggests that Judge Larsen will be inclined to vote in favor of expansive theories of executive power while on the 6th Circuit.

Trump's appellate court picks also include some explicit critics of libertarian legal thinking. Amy Coney Barrett, for example, who was confirmed to the U.S. Court of Appeals for the 7th Circuit in October 2017, has faulted the libertarian legal scholar Randy Barnett for championing a theory of economic liberty that she considers to be unsupported by the text of the Constitution. Furthermore, she has argued in support of the Supreme Court's current approach in economic regulatory cases, in which the regulation at issue is judged under the highly deferential "rational-basis test." In Barrett's view, "deferential judicial review of run-of-the-mill legislation" makes sense because it "is consistent with the reality that the harm inflicted by the Supreme Court's erroneous interference in the democratic process is harder to remedy than the harm inflicted by an ill-advised statute."

Along similar lines, Kevin Newsom, who was confirmed to the U.S. Court of Appeals for the 11th Circuit in August 2017, has argued that the federal courts have no business protecting economic liberty from state regulation. This view led Newsom to praise the Supreme Court's 1873 ruling in The Slaughter-House Cases for its "judicial restraint," its rejection of "the constitutionalization of laissez-faire economic theory," and its conclusion that "the 14th Amendment did not safeguard [economic liberties] against state interference."

Trump's picks are not all bad news for libertarians, however. Don Willett, who was confirmed to the U.S. Court of Appeals for the 5th Circuit in December 2017, has characterized Slaughter-House as wrongly decided because the 14th Amendment does indeed contain judicially enforceable protections for "the right to earn a living free from unreasonable government intrusion." As for the sort of judicial deference praised by Newsom, Barrett, and other like-minded conservatives, Willett countered: "Majorities don't possess an untrammeled right to trammel."

For better or worse, these new judges are going to leave a mark on the judicial branch. Keep in mind that the U.S. Supreme Court only decides around 75 cases each term, while the federal appellate courts handle thousands, most of which are of course never reviewed by SCOTUS. For all practical purposes, federal appellate judges often preside over the real court of last resort.

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.

  • DajjaI||

    So should I fire up my woodchippers or not?

  • Fist of Etiquette||

    Shouldn't we be judging the picks on a racial basis?

  • Red Rocks White Privilege||

    What a cis thing to say.

  • Bearded Spock||

    Excuse me, but are you assuming Fist's gender?

  • Just Say'n||

    Religious basis is the new hip thing

  • Bearded Spock||

    Well, according to the Dems we got to keep those Papists off the court or we'll all be eating fish on Fridays faster than you can say "Guy Fawkes".

  • Just Say'n||

    "Amy Coney Barrett, for example, who was confirmed to the U.S. Court of Appeals for the 7th Circuit in October 2017, has faulted the libertarian legal scholar Randy Barnett for championing a theory of economic liberty that she considers to be unsupported by the text of the Constitution."

    Are there a lot of judges who do support this interpretation, so dubbed as the "Lochner era"? Didn't Gorsuch even avoid endorsing this strain of thought?

  • Libertymike||

    Justice Thomas has signaled that he would overturn the Slaughter-House cases.

    The Lochner era has been misrepresented by progressive jurists and scholars for over a hundred years. Some of these progressives include Judge Barrett and the late Robert Bork.

  • ||

    That's the highest number of federal appellate court judges ever confirmed during a president's first two years in office.

    Was there any doubt that there would be winning involved? /s

  • AustinRoth||

    "Elections have consequences", a hero of the Left once opined. So right back at you.

  • brady949||

    "Take Joan Larsen, who was confirmed to the U.S. Court of Appeals for the 6th Circuit in November 2017. Among her past writings is a strong defense of executive power, including the use of presidential signing statements by her old boss, President George W. Bush. "If circumstances arose in which the law would prevent him from protecting the nation," Larsen wrote, summarizing the thrust of one such signing statement, Bush "would choose the nation over the statute."

    That's pretty radical, but I'm sure the media was too busy covering important things like how many times Trump golfs or if he called someone a dog to cover it.

  • Weigel's Cock Ring||

    Man, do I love it when Mary Stack takes the day off. The volume of that cunt's "output" and the number of different usernames she trolls under here is just staggering.

  • Dillinger||

    >>> "the right to earn a living free from unreasonable government intrusion."

    Filburn's gonna get some justice one day.

  • David Nolan||

    Trump, by empowering the Christian Taliban, has exposed the moral hypocrisy of so many in the "family values" crowd.

  • Michael Ejercito||

    What Christian Taliban.

  • David Nolan||

    The theocratic ones.

  • Last of the Shitlords||

    Who are?

  • David Nolan||

    Umm, theocrats are those who promote a theocracy, like the Muslim Taliban, but our own Constitution mandates Separation of Church and State.

    History lesson: Many colonists came to the New World to escape religious persecution, as we all learned in school. The (un)Holy Inquisition was committing church/state moral atrocities until roughly our Civil War. And, of course, we'd suffered our own Salem Witchcraft trials.

    Brainwashed theocrats screech that "wall of separation" does not appear in our Constitution, as if it had to!! That's the INTENT of the founders, as confirmed by our first three Presidents and a unanimous US Senate in our 9th year.
    1) The Treaty of Tripoli was negotiated under Washington,
    2) Signed by Adams, after
    3) Unanimous ratification by the Senate. as the Supreme Law of the Land.

    Article 11 of the Treaty: "...the United States is not, in any sense, founded on the Christian religion."

    it was Jefferson who used "wall of separation" as the founder's INTENT, when he was asked by Connecticut Baptists who feared religious persecution.

    So the evidence is overwhelming and undeniable, on the prevailing belief at our founding.

    Anything else?

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online