It is no coincidence or surprise that a president who would retweet “white power” messages and lace his administration with white nationalists would choose to relentlessly repopulate the federal courts with white men. Donald Trump has accomplished this, loudly and proudly, with the help of Senate Majority Leader Mitch McConnell, the Kentucky Republican, who has traded in his constitutional obligation to undertake robust legislative oversight over executive branch action for the chance to stack the judiciary with life-tenured ideologues loyal to conservative causes. It is a trade-off the American people will be suffering from for decades to come.
Last week, Cory Wilson became the face of this effort when he became the 200th federal judge to be confirmed by a Republican Senate during the Trump administration. In his first 40 months in office, Trump already has filled about 30 percent of the positions in the country’s federal appeals courts, where most of federal law is settled. Not a single one of Trump’s 53 confirmed appeals court nominees is Black. Only a single confirmed appeals court nominee is Latino. “Leave no vacancy behind” is the Republican slogan for this effort, Trump’s crowning achievement as president.
In this respect Trump isn’t just trying to undo what Barack Obama did during his presidency. Obama pushed through by far the most racially diverse group of federal judges of any president in American history. Trump is explicitly trying to undo that. But Trump also is seeking to stack the deck in his favor in the federal courts whether he is elected to a second term and seeks to advance his authoritarian agenda or is defeated this November and faces the (real and growing) possibility of criminal prosecution. The Trump judges in this respect aren’t just conservative ideologues sanctioned by the conservative Federalist Society. They are insurance policies.
Insurance policies — and political and legal landmines set to disrupt the policies of future Democratic administrations. Let’s be clear: A generation or two from now many of these judges will be issuing injunctions to thwart progressive policies or to protect conservative causes. They will be solid votes to undermine voting rights and the rights of criminal defendants and prisoners. They will be hostile to the rights of minority litigants and those who bring First Amendment cases challenging government restrictions on free speech and government endorsement of religion.
Many of the Trump nominees were legitimately qualified for their jobs as judges — or at least as qualified as most of the judicial nominees of past presidents. (We can argue another time how unfair it is that so few former public defenders compared with so many former prosecutors are tapped to become judges). But, let’s face it, many other Trump judges are patently unqualified for the jobs they got, either because they lacked any relevant experience or because their legal and constitutional views were alarmingly strident. Those judges are still going to be fouling up the law when your children and grandchildren care about the courts.
With an earnest Senate performing a reasonable facsimile of its “advice and consent” function, these unworthy Trump judges would have lost their confirmation battles or at least been given the chance to withdraw their nominations. Put another way: there are many Bush-era and Obama-era judicial nominees (Miguel Estrada comes to mind before Merrick Garland does) who were wrongly refused their rightful seats on a federal bench despite being manifestly more qualified than some of the Trump judges stuffed through McConnell’s Senate in the past three years.
The racial message the Trump administration has sent through the nomination of its federal judges doesn’t end with the judiciary. When it comes to the Justice Department, and federal prosecutors, the president and his attorneys general have ensured that U.S. attorney’s offices around the country are led predominantly by white men, too. There are 93 offices around the country. That means 93 U.S. attorneys. There are today just seven who are women. There are only two who are Black. This is no coincidence. It’s an insult to qualified candidates who are women and people of color.
One open question now is whether Joe Biden, the presumptive Democratic nominee for president, will make the makeup of the federal judiciary a major campaign theme in the months ahead. There is little reason to think he will. Nor is there much reason to think that the Democrats will be as single-minded and efficient as their Republican counterparts have been in nominating and confirming federal judges should Biden win. One of the most lasting critiques of the Obama administration is that it didn’t prioritize or fight hard enough for its judicial confirmations when it had the chance.
Senate Democrats, stymied so often these past three years in trying to block unqualified Trump judicial nominees, have tried in the past few months to seize the initiative by calling out the Federalist Society’s role in vetting and promoting those nominees. But that’s not enough. Democrats should be (and are) working now on vetting potential judicial nominees so they can produce a list of impeccably qualified people on January 20 should Biden win. There must be two plans of action. One in case the Democrats win back the Senate and one in case they don’t, and a Biden White House has to deal with McConnell’s resurrected obstructionism.
One thing is clear, however, no matter who wins in November. Decades from now, many of the federal judges Trump and McConnell rammed through the Senate will still be serving as little poison pills throughout the country. White men who believed in Donald Trump and in whom he and the Federalist Society believed. White men, dozens of whom are so extreme in their legal philosophy that they refused to even say that Brown v. Board of Education, the historic 1954 Supreme Court ruling that helped end legal segregation, is valid precedent. White men issuing definitive legal rulings in a country that looks less like them every single day.
The views expressed are the author’s own and not necessarily those of the Brennan Center.