WASHINGTON — The men and women President Trump has elevated to federal judgeships across the nation are having an impact on issues ranging from civil rights and campaign spending to public prayer and the death penalty.
Nearly a year after the first of them won Senate confirmation, 15 nominees have made their way to federal appeals courts, representing perhaps Trump’s most significant achievement in his 15 months as president. A dozen more are in the pipeline.
While it’s too soon to detect a definitive trend, Trump’s judges are making their presence felt through the weight of their votes and the style of their rhetoric.
Judge Amul Thapar of the U.S. Court of Appeals for the 6th Circuit led the way last May and has amassed the largest body of work so far. He helped uphold Ohio’s method of lethal injection as well as a Michigan county’s practice of opening government meetings with Christian prayers.
Judge James Ho, a more recent addition to the 5th Circuit Court of Appeals, dissented from its refusal to reconsider a challenge to strict campaign contribution limits in Austin, Texas, that he said violate the First Amendment.
Judge Amy Coney Barrett of the 7th Circuit Court of Appeals helped block the U.S. Equal Employment Opportunity Commission’s attempt to stop an employer from transferring Chicago-area employees based on their race or ethnicity.
Three judges named by Trump to the 8th Circuit Court of Appeals — Ralph Erickson, Steven Grasz and David Stras — joined in its refusal to reconsider a Missouri inmate’s plea to change his method of execution because a rare health condition could make lethal injection too painful. The Supreme Court nevertheless agreed to hear the case next fall.
Trump’s judges have ruled in favor of police, prison guards and a male student seeking the right to face his accuser in a sexual assault case, as well as against a naturalized citizen fighting his loss of citizenship.
The early results please conservatives and concern liberals.
“It usually takes a little while before new judges assert themselves,” said Jonathan Adler, a professor at Case Western Reserve University School of Law. Trump’s judges, he says, already are showing “signs of independence and thoughtfulness.”
“What we’ve seen so far, I think, is certainly disturbing,” said Elliot Mincberg, a senior fellow at People for the American Way. “These are certainly very right-wing judges.”
Few of their votes have been decisive so far. Most of Trump’s appellate judges serve on courts already dominated by Republican presidents’ choices. Many — including those named to the 3rd, 10th and all-important District of Columbia circuits — have yet to make their impact felt. And Trump’s 17 confirmed nominees to federal district courts are operating largely beneath the radar,
Even so, Senate Majority Leader Mitch McConnell is making the continued push to confirm Trump’s judges his top priority this year, telling conservative radio host Hugh Hewitt Thursday that “strict constructionists” in their late 40s and 50s are “making a generational change in our country that will be repeated over and over and over, down through the years.”
Not always predictable
Some of those strict constructionists have not always been predictable. Trump’s first and most important nominee, Supreme Court Justice Neil Gorsuch, sided with liberals last month in ruling that a law subjecting non-citizens to deportation for crimes of violence is unconstitutionally vague. Such laws, he said, “can invite the exercise of arbitrary power.”
One of Trump’s most controversial picks — 6th Circuit Judge John Bush, who had penned a blog post under a pseudonym comparing abortion to slavery — ruled in favor of a Mexican woman seeking asylum in the United States. He was backed by two judges appointed by Democratic presidents.
“We and our sister circuits have found a real threat of individual persecution when an applicant presented evidence describing threats of harm,” Bush wrote.
Curt Levey, president of the conservative Committee for Justice, said the decision shows that Trump’s judges are “believers in textualism and the rule of law, rather than ideological conservatives who might decide cases based on their personal political beliefs.”
Judge Kevin Newsom of the 11th Circuit joined a three-judge panel’s unanimous ruling that an Alabama police department’s demotion of a female officer seeking to breastfeed her newborn child was discriminatory. The panel said its holding “will help guarantee women the right to be free from discrimination in the workplace based on gender-specific physiological occurrences.”
Since coming to office, Trump has nominated more than 100 federal judges, and the Senate has confirmed 33. Another 12 circuit court nominees and 58 district court nominees are in the pipeline. The speed and efficiency of the process far outpaces past Democratic and Republican administrations.
It helped that Trump inherited more than 100 lower court vacancies, and that Senate Democrats in 2013 changed that body’s rules to block Republicans from bottling up nominations with just 41 votes. Now Republicans are in the majority — barely — and have been united on the president’s appeals court choices.
Conservatives have hailed them for their relative youth — Gorsuch is 50, and the 15 appeals court judges average 49 — and their adherence to the Constitution. Four of them clerked for the Supreme Court’s most conservative justice, Clarence Thomas. Nearly all are white; four are women.
Included among them are several already being touted by conservatives as potential Supreme Court nominees, including Barrett and Thapar, who is Indian American.
But while much has been written about their nominations and confirmations, little attention has been paid thus far to their rulings from the bench. Together, they are pushing back against the liberal tilt of the appellate courts, two-thirds of which are controlled by judges named by Barack Obama and Bill Clinton.
Last month’s dissent by Ho, a native of Taiwan, did get noticed. His argument against Austin’s $350-per-election limit on individual donations to City Council candidates veered into a diatribe against “big government,” drawing kudos from conservatives, criticism from liberals — and support from only one of his colleagues. Twelve disagreed.
“If there is too much money in politics, it’s because there’s too much government,” Ho wrote. “The size and scope of government makes such spending essential.”
Levey said the dissent was “a powerful indication that he will be a vigorous and unabashed judicial conservative.”
Coming as advertised
Thapar, a former Kentucky judge and U.S. attorney who’s a favorite of McConnell’s, has heard the most controversial cases among Trump’s judges. Thus far, he comes as advertised.
Twice he has voted to uphold Ohio’s method of execution, revived last year after a hiatus ordered by Gov. John Kasich. The three-drug, lethal injection protocol begins with midazolam, a sedative that critics claim does not prevent prisoners from feeling pain, but which the Supreme Court allowed in a 5-4 decision in 2015.
“The Constitution does not guarantee ‘a pain-free execution,'” wrote Judge Raymond Kethledge for the 8-6 majority that Thapar joined last June.
Thapar also joined another 6th Circuit opinion last September that traced an earlier, 5-4 Supreme Court ruling. This time, he voted to uphold a Michigan county board’s practice of having its members — all Christian — open meetings with a prayer at which audience members are asked to rise and “assume a reverent position.”
The 9-6 majority opinion held that the county’s prayer practice is consistent with Supreme Court decisions from 2014 and 1983. But opponents said the county went further by having only elected officials deliver the invocations, rather than clergy of various faiths. A similar case last year in the liberal 4th Circuit Court of Appeals came out the other way.
Barrett joined four other 7th Circuit judges in refusing to let the full appeals court hear the EEOC’s case against AutoZone. The federal agency had accused the company of transferring employees in Chicago based on their race, in order to reflect neighborhood demographics.
In their dissent, three judges wrote that the policy “deprived people who did not belong to the designated racial group of employment opportunities at their preferred geographic location.”
Civil rights groups hope to use the growing number of opinions and dissents from Trump’s judges to pressure key senators into voting against future nominees.
“It is no surprise that Trump’s judicial nominees, who were selected because of their extreme records, are now issuing rulings demonstrating that they remain extreme as judges,” said Kristine Lucius, executive vice president for policy at the Leadership Conference on Civil and Human Rights. “The Senate must stop rubber-stamping narrow-minded nominees to lifetime judicial appointments.”
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