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Trump and McConnell’s Overwhelmingly White Male Judicial Appointments

The president and Senate majority leader have pushed through a slate of judges and Justice Department leaders shockingly at odds with American demographics.

July 1, 2020

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.