Trump’s Impact On Federal Judiciary May Be Hard For Biden To Reverse


WASHINGTON – President Donald Trump will be out of a job next year, but the life tenure enjoyed by his three Supreme Court justices and 230 lower court judges will cement his legacy and create a major obstacle for President-elect Joe Biden.

A concerted effort by Senate Republicans that began before Trump even was elected left him more than 100 federal court vacancies to fill upon entering office in 2017 – a vacuum Trump and GOP leaders made sure not to leave Biden entering 2021.

If Republicans retain their Senate majority by winning at least one of two runoff elections in Georgia on Jan. 5, they also will be in a position to block much of Biden’s policy agenda. That could lead the new president to use executive actions rather than going through Congress – and those could get blocked in the very courts Trump has stacked.

“The legacy of Trump’s judicial nominations is going to be a barrier not just to Biden but Democratic presidents for a long time,” says Brian Fallon, executive director of the liberal advocacy group Demand Justice and former press secretary for Hillary Clinton’s 2016 presidential campaign. “We are behind the eight ball for years to come.”

The Trump judicial juggernaut began in 2016, when Senate Majority Leader Mitch McConnell, R-Ky., and allies preserved the Supreme Court seat left open by Associate Justice Antonin Scalia’s death as well as scores of federal circuit and district court vacancies.

Over the next four years, the White House and Senate Republicans confirmed conservative Associate Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett to the Supreme Court, along with 54 appeals court judges, 173 district court judges and three to the Court of International Trade.

Those are near-record numbers. President Richard Nixon was the last to name four Supreme Court justices during his first term. President Jimmy Carter named 262 federal judges in his single term, but more than half of those were to new judgeships created by Congress.

The influence of Trump’s Supreme Court justices will be felt in years to come, now that Barrett’s replacement in October of the late Associate Justice Ruth Bader Ginsburg has given conservatives a 6-3 majority. But it’s already being felt in the nation’s regional circuit courts, where 99% of federal appeals are decided.

When Trump took office, nine of the nation’s 13 circuit courts were dominated by Democratic presidents’ appointees. He flipped three of them: the 2nd Circuit based in New York, the 3rd Circuit based in Philadelphia, and the 11th Circuit based in Atlanta. Even the sprawling, San Francisco-based 9th Circuit bears his imprint, having gone from a 19-9 majority of Democratic presidents’ nominees to 16-13.

“Progressives are waking up to how critical the courts are,” says Marge Baker, executive vice president of the liberal advocacy group People for the American Way. “They’re getting demonstrations every day about the harm Trump’s judges can cause from the bench.”

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Those judges are overwhelmingly young, male and white. Most are in their 40s or 50s, giving them decades to influence and shape federal law. About 75% are men, and nearly 85% are white.

Biden is certain to reduce those percentages, having committed himself to naming the first African American woman to the Supreme Court and to appointing more Blacks and Hispanics to lower courts.

In addition, progressive interest groups are pressing the incoming administration to choose judges from a wider range of backgrounds than the usual prosecutors and corporate lawyers. They have presented the incoming administration with more than 100 names, including public defenders, civil rights advocates and labor lawyers.

Beyond demographics and job experiences, however, Biden’s influence on the judiciary is not likely to be as dramatic as Trump’s has been.

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His first problem is the Senate, which is likely t… (Read more)

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