The Trump administration has transformed the federal courts with unprecedented speed, largely by ignoring widely accepted norms for judicial appointments. The question now is what the response should be, in order to protect the rule of law.

President Trump may now be unable to pass major legislation, because he has lost the House of Representatives. His regulatory rollbacks could be swiftly undone should Democrats reclaim the Presidency. But, because the Senate remains Republican, judicial transformation is ongoing.

With rare focus, President Trump has already forged a Republican majority in both the Supreme Court and the circuit courts. By 2020, his ideological appointees may well account for a third of active circuit judges, and possibly a third of the Supreme Court. Life tenure for these positions means the President’s judicial influence is likely to persist longer than any other aspect of his legacy – except perhaps climate change.

Yet, even regarding global warming, it’s likely the impact President Trump has had on the judiciary could be considered of greater significance. Without a compliant bench, the President can have little effect on climate change or indeed any other issue.

Democrats, who trust in demography, foresee a future where a Republican federal judiciary continually frustrates a Democratic electoral majority. Outraged that Republicans have attained judicial dominance by shattering the norms of judicial politics, many Democrats would engage in tit-for-tat when they next control the Senate – by leaving vacant the next open Supreme Court seat until a Democratic president is elected. A number of serious voices in political discourse go further, and openly advocate court packing. ‘The Republicans are already fighting court wars, and they’re winning,’ says David Faris, Program Director of Political Science at Chicago’s Roosevelt University, ‘so we’ve got to play hardball.’

A wide-ranging chorus of legal authorities retort that nothing could be more inimical to the rule of law.

Norm breaking

The role of former Senate Democratic Majority Leader, Harry Reid, is important. In autumn 2013, with the political dynamics reversed, Reid eliminated the traditional right of the minority party to filibuster lower court nominees, when Republicans tried to block three moderate Obama nominees to the DC Circuit. ‘There was such Republican intransigence, Reid really had no alternative,’ says Sheldon Goldman, Distinguished Professor of Political Science at University of Massachussetts, Amherst, and expert on the politics of judicial selection and confirmation.

Arthur Hellman is former Deputy Executive Director of the Commission on Revision of the Federal Court Appellate System. ‘That was certainly a major, major escalation. In retrospect it was a major miscalculation,’ he says.

‘You’ll regret this,’ McConnell warned Reid, ‘and you may regret this a lot sooner than you think.’

When Justice Antonin Scalia died in February 2016, with 11 months left in the presidential term, Senate Majority Leader Mitch McConnell famously refused to hold a hearing to confirm the moderate Democrat whom President Obama nominated to the Supreme Court. Some consider that seat – and the Court majority that came with it – to be stolen.

Others, such as Curt Levey, President of the Committee for Justice, reply that ‘the situation was unprecedented because there had not been a nomination in a presidential election year with the opposition controlling the Senate since 1888, and then it wasn’t tipping the Court. A good case could be made for letting the American people decide.’

Some social scientists, such as Harvard University’s Steven Levitsky and Daniel Ziblatt (authors of How Democracies Die), see Scalia’s succession as the epitome of one party pushing what’s constitutionally permissible to the limit, while defying the traditions of compromise that make democracy sustainable.

Levey offers a more sweeping historical frame. ‘Progressives have viewed the Court as a political tool since the Warren Court in the 1950s,’ he says. ‘After watching the Court implement a progressive agenda for 30 years, conservatives realised there was a need to push back.’ In the 1980s, under the influence of the newly formed Federalist Society, Republicans began to promote strict constructionist judges. And ever since, says Levey, Democrats have marred confirmation hearings. ‘Republicans get together and we say “we’re too nice”.’

It is less noted than Scalia’s succession, but perhaps equally significant, that Senator McConnell kept open 108 lower court vacancies, or about one-eighth of the federal bench. It didn’t occur by happenstance. Due to Senate stonewalling in the two years leading up to the 2016 election, President Obama won confirmation for only 12.5 per cent of his appellate nominees, and under 30 per cent of his district nominees. The historical norms are between 80 and 100 per cent, and never before had those rates (at different times) dived below 45 or 55 per cent. In absolute terms, the Senate confirmed only one circuit judge and 18 trial judges in Obama’s last two years, compared with the previous low of ten circuit judges and 58 trial judges in the final act of the Bush era.

Whenever the vicious cycle began, and whoever bears more blame, there’s no doubt Senate Majority Leader McConnell dishonoured norms once Republicans regained power. With the filibuster gone, the minority party in recent years relied heavily on the ‘blue slip’ tradition, which gave a Senator the right to veto a judicial nominee in their home state. But McConnell has ignored the blue slip for circuit nominees. By disempowering the Senate minority, some are concerned that discarding such traditions yields ideologically extreme nominees.

President Trump’s judges

Due to the seats kept open by McConnell, the Trump administration has filled the bench at a record rate – especially in the circuits. President Trump’s 30 appellate judges are nearly double those appointed by President Obama in his first two years. Already comprising 18 per cent of active circuit judges, they’ve swiftly swung the Republican share of the appellate bench from 41 to 53 per cent. Goldman says that number could reach 65 per cent in two years, and will skyrocket if Republicans hold the Presidency and Senate in 2020. ‘If Trump is reelected,’ says Levey, ‘then by the end of that term most or all of the circuits will tip.’

‘The circuit courts are very important because the Supreme Court can handle only a minute fraction of their cases,’ says Goldman – in the order of 0.1 per cent. ‘Effectively, they are our regional Supreme Courts.’ Levey argues that circuit courts serve as a crucial check on the cowboy district judges who are hand-picked by liberal litigants seeking nationwide injunctions. ‘Some of those district rulings could be written by an avowed member of the Trump resistance,’ he says.

President Trump campaigned on transforming the courts with ‘great judges, conservative, all picked by the Federalist Society’. The President has mostly been true to his word. Of his first 30 appellate picks, 24 were members of the Federalists, an expansive social network based on law school campuses that advances strict constructionism.

Mike Zubrensky helped to pick judges as Deputy Assistant Attorney General in the Obama administration. President Trump has, he says ‘outsourced the selection of judges to the Federalist Society’, whose main mission is to ‘overturn precedents, and make [it] more difficult for government to help people through attacks on administrative state.’

Donald McGahn – who took the lead in picking judges as President Trump’s White House Counsel until November 2018 – said in an address to the Federalists that ‘a strong judiciary’ is ‘the most effective bulwark against’ the threat of ‘the ever-expanding regulatory state’.

He concluded emphatically: ‘Regulatory reform and judicial selection are so deeply connected.’

Levey, who serves on a Federalist leadership committee, replies that the Society merely plays a benign screening role, similar to that played by the American Bar Association (ABA) under Democratic presidents. ‘Basically every conservative lawyer in the country belongs to the Federalist Society,’ he says. ‘Under the Democrats the ABA has veto power, and the ABA leans as far left as the Federalist Society leans right.’

Perhaps in part because he has dispensed with the tradition of pre-screening his picks with the ABA, to assess whether they are ‘qualified’, at least a few of the President’s judicial nominees have been unlikely candidates. The Senate narrowly rejected an Alabama lawyer who moonlighted as a ghost hunter (formally, he was a member of the Tuscaloosa Paranormal Research Group) and a North Carolina lawyer who built his political name suppressing the African-American vote. Another failed nominee showed such ignorance of the courtroom that he inspired a Republican Senator to observe: ‘Just because you’ve seen My Cousin Vinny doesn’t qualify you to be a federal judge.’

But, for the most part, the President has hewed closely to the highly credentialed lists put forward by the Federalists and The Heritage Foundation, a conservative think tank. ‘I think the quality of appointees overall is very, very high,’ says Hellman. ‘So many of them have Supreme Court clerkships, or are partners in top law firms.’ Indeed, 24 of the first 30 Trump appellate judges began their careers as Supreme Court clerks. Perhaps tellingly, an astounding ten of them clerked for Justice Clarence Thomas, who sits at the far right edge of the Court’s ideological spectrum. Former Thomas clerk James Ho set the tone by using his first opinion on the Fifth Circuit to call for a radical loosening of campaign finance regulation.

For now, Democrats still hold majorities on seven of the 13 courts, crucially including the DC Circuit, the Second Circuit (in New York) and the Ninth Circuit (in California). That’s because Republican appeal judges are overrepresented in the middle of the country and the judges retiring under President Trump are mostly Republican. The compounding early effect has been to make Republican circuits more heavily and radically Republican. ‘Where they are makes these appointments less transformative,’ says Hellman, and ‘more reinforcing.’ Then again, he notes, the replacement of a free thinker like Justice Anthony Kennedy or the Seventh Circuit’s Richard Posner with an ideological purist can be plenty transformative.

At this juncture, Trump judges form at least a quarter of the Fifth, Sixth, Seventh, Eighth and Eleventh Circuits (based respectively in New Orleans, Cincinnati, Chicago, St Louis and Atlanta). With four Trump appointees apiece, the Seventh Circuit is now 9-2 Republican, and the Eighth Circuit is now 10-1. These courts could become a magnet for right-leaning forum shoppers, much as the West Coast draws the litigators of the Trump resistance. ‘The Eighth Circuit may play a role during future Democratic presidencies similar to the Ninth Circuit in recent times,’ says Hellman.

At the same time, several of the Democratic-majority circuits have rapidly neared the tipping point, including the Second and Ninth Circuits. Once current vacancies are filled, President Trump will have more than doubled the number of Republican judges on the Ninth Circuit, from six to 13. The only factor delaying a Republican majority in every circuit by 2020 is the choice of 36 retirement-age Democrats to defer retirement, like the 79-year-old DC Circuit Judge Judith Rogers.

Lower courts

Lower courts matter intensely because they’ve served as the strongest structural check on the President. District courts batted down the President’s policy of separating border-crossers from their children and dismissed as ‘cynical’ his request to instead detain children long-term. After other trial courts demanded actual proof of voter fraud, the White House abandoned the charade of its ‘voter integrity’ commission, ‘rather than engage in endless legal battles’. In regulating methane leakage and flaring by oil and gas drillers, courts have ordered environmental agencies to comply with existing rules, and forced them to do the hard uncertain work of developing new rules rather than simply ‘suspending’ the old ones.

Provisionally, lower courts have blocked the President’s ban on transgender soldiers (although this ban has since been allowed by the Supreme Court); his ban on asylum between ports of entry; his betrayal of the promise that ‘Dreamers’ may avoid deportation; and his defunding of ‘sanctuary cities’ that resist deportation. As the Senate continues to transform the judiciary, will these rulings stand, or will they vanish like the lower court injunctions on the third Trump travel ban?

President Trump’s first appellate appointee, the Sixth Circuit’s Amul Thapar, recently urged the Supreme Court to stop deferring to agencies’ interpretation of their own rules. Trump-appointed justices Neil Gorsuch and Brett Kavanagh are also noted skeptics of judicial deference to the fourth branch. Reining in regulators is ‘one of the safest things you can predict,’ says Hellman.

Levey agrees: ‘I do think there will be pushback on the power of the administrative state.’ Both hasten to add that this is a politically neutral position and, ironically, the policies to suffer near term may be President Trump’s. But many liberals fear Republicans are playing a long game to hamper the Democratic regulators of the future.

For the rule of law, the most vital looming cases may involve executive authority vis-à-vis the Special Counsel or vis-à-vis Congress (for instance in the declaration of a national emergency). Optimists place their faith in the Chief Justice’s concern for the Court’s legitimacy. They find encouragement in Justice Kavanagh recently joining the Chief (over the scorn of Justices Thomas, Alito and Gorsuch), in turning down a chance to narrow abortion rights – possibly showing a distaste for political controversy. However, pessimists warned the Senate at their hearings that Gorsuch and Kavanagh took broad views of presidential power during their service in the second Bush’s Justice Department and White House. It may be a token of how far the jurisprudential mainstream has shifted that Kavanagh wrote a law review article criticising United States v Nixon, the 1974 case where the full Court – including five Republicans – took a narrow view of the President’s power to resist a special prosecutor.

The longtime Federalist Society Chair, Steven Calabresi of Northwestern Pritzker School of Law, pushed an audacious court-packing plan at the dawn of the Trump era. It would have created up to 300 new circuit seats for President Trump to fill – tripling the bench with the avowed aim of ‘Undoing President Barack Obama’s Judicial Legacy’. Under bipartisan criticism, Calabresi removed his plan from the internet for revision and has yet to re-post it.

Thinking the unthinkable

It was perhaps inevitable that liberals in the Trump age would also toy with the dream of packing the courts. ‘Long seen as an unacceptable tactic, court-packing is now increasingly viewed as the least-bad option by an array of scholars and activists fearful that the Supreme Court has become a wholly owned subsidiary of the Republican Party,’ writes Ian Millhiser of ThinkProgress in Democracy: A Journal of Ideas. The New Republic last year ran an essay titled, ‘Democrats: Prepare to Pack the Supreme Court’. Figures as mainstream as Harvard Law School Professor Michael Klarman have embraced the taboo. Perhaps the idea’s leading advocate is political scientist David Faris, whose book, It’s Time to Fight Dirty: How Democrats Can Build a Lasting Majority in American Politics, was approvingly reviewed in The New York Times.

Faris’s starting point is that Republicans have used undemocratic means to position themselves to undermine the Democrats’ democratic agenda for a generation. ‘All of the major political institutions in this country have strong anti-majoritarian tendencies,’ he says. ‘Over the past 26 years, Democrats have won the Senate by 30 million votes and the Presidency by 35 million votes, and yet here we are. We now have four Republican Supreme Court justices appointed by presidents who were initially elected with minority vote.’

Adding insult to injury, the Republican electoral minority, in this narrative, has used its institutional power to entrench itself and advance a radical unpopular agenda. ‘Going back to 2000,’ says Faris, ‘a significant number of mostly 5-4 decisions have reinforced Republican political power, starting with Bush v Gore, and proceeding through the cases on “voter ID” laws, Shelby County gutting voting rights, and Citizens United’ gutting campaign finance laws. ‘The Court has refused to declare partisan gerrymandering unconstitutional, and is serving as a handmaiden to Republican voter suppression.’

In the coming years, Faris anticipates two dark futures. Either the Court will bless ‘one-party rule’ by the Republicans on the pattern of North Carolina, or – if the Democratic majority cannot be suppressed electorally – the Court will systematically overturn progressive legislation as in the years before 1937. ‘This Court came very close to overturning [the] affordable care act on spurious grounds,’ says Faris. ‘We don’t yet know what it will feel like to have nearly all of the Democratic majority’s economic policies overturned, and social policies like Roe v Wade rolled back.’

What would happen in a world where the Democrats control the Senate without the Presidency? Most experts interviewed believe that the Democrats will at least play some form of tit-for-tat. To retaliate for McConnell’s blockade of Obama confirmations, Democrats might put a freeze on circuit nominations. To retaliate for the norm-breaking confirmations of Gorsuch and Kavanagh, Democrats are extremely likely to keep open the next two Supreme Court seats if they are vacated in an election year – and quite likely to keep them open in any year if the President is not a Democrat.

‘There’s no question,’ says Goldman, ‘if the Democrats regain control of the Senate, they’re going to play hardball, and say the Court can operate with seven or eight people.’

According to Zubrensky, ‘It’s very difficult for the minority party to take the high road when they come back into power after they have been rolled repeatedly. We may have reached the point in history where a President is only able to get a Supreme Court justice confirmed if their party controls the Senate.’

Faris is less equivocal: ‘I think that’s where we’re at already but people don’t want to say it out loud: you don’t make Supreme Court appointments at any point during a President’s four-year term unless you hold the Senate.’

‘Holding a seat open for two or four years goes further, but far less troubling than court packing,’ says Ilya Somin, Professor of Law at the Antonin Scalia Law School, George Mason University. ‘It could be plausibly defended as retaliation in kind.’

And what might happen if Democrats control both Congress and the Presidency? Faris’s preferred solution is to amend the Constitution to limit Supreme Court terms to 18 years, so that every President appoints one justice every two years. But logistically, a constitutional amendment is virtually impossible. By contrast, the Constitution is silent about the number of judges and justices. The number of justices has been set at nine since 1869, but routinely fluctuated before that. Faris predicts Democrats will, ultimately, be willing to do whatever it takes to ‘restore the stolen normative order’.

Faris would then advocate legislation to create two to four new seats, depending on how many Democrats have resigned by then. Goldman thinks this idea is awful – but plausible. ‘If the election of 2020 resulted in massive democratic win – White House, Senate, House – I think we might see legislation to enlarge the Supreme Court to reclaim what Democrats believe is Gorsuch’s stolen seat and to reclaim the illegitimate-from-the-Democrats’-perspective Kavanagh seat.’ To make it less provocative, the legislation could provide that the next two vacancies not be filled, so that the Court returns to nine justices.

Somin has been equally critical of Republican and Democratic court-packing plans.

Though the Republican plan for the lower courts was far more ambitious, he finds the Democratic plan more frightening, because it has been so favourably received by the mainstream media. Whoever starts, says Somin, the other party would surely ‘counterpack’ the Court and create its own judicial majority on returning to power, and then pack the rest of the courts. At best, the public would perceive the Court as politicised. More likely, the Court would be politicised. Each party would see its own overreaching policies upheld – and judicial review would be severely degraded.

‘I do think it threatens the legitimacy of the judiciary,’ agrees Hellman. ‘At some point judges will be seen as purely the creation of politicians. This is the sort of thing that happens in “banana republics”.’

Somin echoes the University of Michigan Law School’s Richard Primus, who argues that democracy depends on each party following unwritten rules, not just the formal Constitution. Primus draws an analogy with pick-up basketball in a city playground: ‘If you care too much about winning this round and not enough about respecting your rival in the spirit of the game, pretty soon there might not be a game at all.’

Although Somin dislikes the Supreme Court’s travel ban ruling, among others, he says liberals would be foolish to undervalue the Court’s protections. First, the lower courts have been a highly effective check on President Trump, and even the Supreme Court has had its moments. Somin cites the Court halting the deportation of aliens for ‘crimes of violence’. He argues that attitudes toward the Court shouldn’t turn on one set of cases against one administration.

An independent judiciary can check the impulses of every administration. ‘American democracy right now is teetering on the brink,’ argues Goldman. ‘These are very unwelcome disruptions of constitutional norms, the kind of disruptions that in our history lead to civil war. A lot may be attributed to the President but it’s not just him. It’s not a healthy development when “compromise” becomes a dirty word.’

Hellman agrees. ‘The norm breaking has been bipartisan,’ he says, ‘and it’s been escalating like a Hatfield-McCoy feud. With each election, the other side gets a little more aggressive.

At some point I’d like to see both sides say, “Whoa, we’ve gone too far” and to recognise that we all have an interest in the judiciary not being seen as partisan.’

Michael Goldhaber is the IBA’s US Correspondent. He can be contacted at michael.goldhaber@int-bar.org