During the last presidential election campaign, both Donald Trump and Hilary Clinton battled viciously for supremacy. It was one of the most dastardly and mean-spirited of all time – a no-holds-barred contest between two people who genuinely hate each other.
On its face, the campaign was about jobs, China (Jina!), and Mrs. Clinton’s email server. Under the surface, both candidates knew the real game – securing the judiciary for a generation.
Under the constitution, the American legal system is supposed to be apolitical. The actions of voters shouldn’t affect the way in which judges interpret the law. In recent years, though, we’ve seen flagrant violations of this edict – something that could ultimately threaten to undermine the republic itself. Judges have issued biased decisions at the circuit level only to find their rulings overturned by appeals or the Supreme Court itself.
You expect these sorts of shenanigans at a local level where the bias occurs between specific judges and people presenting at court, as in the Carter appellate victory. But you don’t want it when it involves coming to decisions that affect the entire country and goes against the US Constitution.
During his tenure, President Barack Obama appointed hundreds of district court judges to make choices of critical legal matters. And, as you might expect, his selections were more liberal than, say, those of George Bush. In response, Donald Trump has been fighting back, delivering on his campaign promise to fundamentally alter the judiciary, both at the circuit level and at that of the Supreme Court, to influence decision-making. Trump, Pence, and Bannon all saw adjusting the composition of the judges as a way to keep the court constitutional and conservative.
When Trump came to power, he had a once-in-a-generation opportunity to “rebalance” the court. Unlike other presidents who made zero or one appointment in their tenures, Trump has already made two and could make three or four, depending on the health of Ruth Bader Ginsburg. Thus, he could potentially lock conservative values into the Supreme Court for a generation, preventing it from making any of the pro-liberal decisions it might have done.
Interestingly, Trump knew the game right from the start of his presidential play (and it could be why he chose 2016 as the first campaign to contest, even after talking about the possibility of becoming president for many years). He understood that the person who won the 2016 election would effectively get the keys to the supreme court and appoint whoever they wanted. From his recent decisions, it is clear which direction Trump is going in. He wants conservatives like Neil Gorsuch and Brett Kavanagh to dominate decision-making. It seems unlikely that he would nominate a liberal.
The pattern of the Supreme Court is something that is happening all over the country. For instance, the Republican candidate for the Texas Supreme Court, Don Willett, is well-known for his unwavering conservatism and his association with pro-life and pro-family groups. Willett has also gone on the record to state that he will actively pursue a fiercely conservative agenda and will use the court as a sounding board for traditional values.
Willett’s election is an insight into the broader picture of what’s happening across the country. The once-liberal ninth circuit that opposes Donald Trump’s original travel ban has flipped and is now an entirely conservative institution that supports the decisions made by the current administration. Other courts are also going in a different direction, owing to the sheer quantity of appointees made by Mr. Trump.
At the last count, the president had nominated more than 51 judges, almost all of them with overt constitutional or conservative approaches to the law. Lifetime appointees that make up around 75 percent of the appellate bench, also overwhelmingly favor Republican issues.
Interestingly, the number of disputes among Trump’s appointees are failing and becoming rarer. As a group, the judiciary is becoming more homogeneous. However, the split between the number of disagreements between Republican appointees and democrat appointees is wider than during any other US presidency in modern history.
The worry now is that judges are no longer willing to stand up for what they think is right and are towing the Republic/Trump party line. Those on the left and right are concerned that judges are legislating from the bench and not carrying out their constitutional mandate correctly.
Under the US political setup, the judiciary is supposed to be independent of the presidency and Congress. But the practical matter of appointing judges seems to undermine this ideal. Political appointees actively choose who sits on the bench. And so, naturally, they look for people who align with their values. This setup creates a strange situation in which the judiciary is independent on paper – and in some ways, it is. But it is also the child of Congress and the political process. And, in that sense, it’s not.
Judicial appointments are an essential part of a presidential legacy. In many ways, Trump has created a situation that has all but reversed many of the liberal gains of recent years and put democrats very much on the back foot. The White House has created a situation that could lead to the overturning of historical Supreme Court decisions along partisan lines.
As we have seen, though, things aren’t always that clear cut. The Supreme Court still relies on individual judges with their particular persuasions and values. Many are conservative, but that doesn’t mean that they always agree with the president. In fact, Neil Gorsuch actively went against Donald Trump on various issues where the latter’s view did not conform with the constitution.
Interestingly, the Democrats seem to realize what’s going on here and yet haven’t used it as part of their political platform. Early on in Trump’s presidency, members of the House tried to block the appointment of Neil Gorsuch in response to Republican blocking of candidates elsewhere.
Whether this to and fro will damage the country as a whole remains to be seen. Constitutionalists point out that nobody has done anything that actually goes against the rules set out on the founding document. It appears that the founding fathers themselves wanted the court to be a barometer of long-term political opinion. However, purists will see this kind of activity as going against the spirit of the original document. The separation of powers is supposed to protect the country from mob rule and judges interpreting clauses according to their opinion.
Trump has mostly delivered on his promise of appointing more judges than any other president in history, beating out all others at their respective points in their presidencies. If he wins again in November, he’ll likely take the overall lead, beating out even Obama, who was prolific. Trump may also elect to run for a third term, thereby allowing him to transform the Supreme Court and the other circuits completely.
Trump is also playing a smart strategic game, appointing lots of judges to active judgeships, one step before the Supreme Court. Therefore, the list of candidates of people who can potentially fill D.C. Circuit roles is highly skewed in conservatives’ direction. If we see Joe Biden elected, this might not change all that much. But if Trump gets back in, he can evaluate many more records than he would have been able to otherwise.
Gaining control of the Supreme Court gives particular political parties immense power. In many ways, it is the ultimate prize of American politics, since it holds the keys to unlocking major decisions that really matter to people. For years, people have seen the Supreme Court as a fundamentally activist institution, which historically straddled both sides of the ideological divide. Today, many analysts see it as moving in a libertarian direction. It’s pro-business, anti-regulation, and pro-property rights.
How far it will go in this direction remains to be seen. But as recent political and social movements show, there’s a healthy appetite for more freedom and less government control in people’s lives.
Judges may be ideological – in which case, they will follow these philosophies to their ultimate conclusion. But more likely, they will temper them with practical considerations and the constitution. While the founding document is freedom-orientated, the conception was radically different from what it is today. Keen scholars will note this and take it seriously when adjudicating.
Arguably, Trump will require a second term to really make an impact on the courts. Importantly, though, he has swung the balance of power on the Supreme Court and locked in his moves by choosing young judges. If Ruth Bader Ginsburg bows out for health reasons, it will decisively move decisions in Trump’s direction, potentially setting up the court for some historic reversals.
It would also allow Trump to push through some of his more controversial policies. For instance, he could put a wealth test in place for Green Card applicants as part of his long standing dislike of the scheme.
Fortunately, the judiciary is still in good health. Most judges just want to interpret the law accurately. And the evidence so far is that that’s what they’re mainly doing.