Trump After 500 Days: More Lifetime Federal Judges

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends much of her time in Asia and is currently working on a book about textile artisans.

Today Trump trumpeted his (ahem) successes– real and otherwise– in his first 500 days as President (see this White House press release, One achievement: confirming “the most circuit court judges of any President in their first year, and [securing] Justice Neil Gorsuch’s confirmation to the United States Supreme Court.”

This Administration accomplishment cannot be denied, as I have acknowledged previously:

One year in, the Trump administration continues to set records for the discipline and efficiency with which it is seating federal judges– who have lifetime tenure, and will continue to serve long after the Donald is a bad memory.

As David Lat writes in , the administration well understands that the success of advancing its agenda, in the longer term, depends in significant part on the composition of the federal judiciary. Trump cannot replace sitting judges, but he can make sure, going forward, that those who share a similar ideological approach, are ruling on his initiatives and those of his successors:

Many of President Trump’s initiatives might get stuck in Congress, struck down by courts, or undone by his successor — but his appointees to the federal bench, appointed for life, will be around for a long, long time (especially given the administration’s when selecting nominees).

Brookings published this report today, , explaining one necessary condition for Trump’s success in seating federal judges:

The reasons for the vacancies—old news to most—was the flimsy confirmation record in the 2015-16 Senate (the 114th), with its new Republican majority. Just as it refused to consider Merrick Garland’s Supreme Court nomination, it shut down the lower court confirmation process.

The Brookings report concludes that conditions that prevailed in the Senate in 2015 and 2016:

contributed to the contentiousness and polarization of the once semi-ministerial task of confirming judge. There is no reason to expect the process to get any better. We are reaching the point that confirmations stop unless the same party controls the White House and Senate.

Currently, Republicans are not resting easy and are working to confirm further judicial nominations– with Senator Chuck Grassley going so far as proposing to surrender the August congressional recess to further this goal, as recently reported by The

“Lets work Friday/Saturday/August recess to get more done in the Senate [and] help the judicial branch do its job…”

Bizarre Trump Side Effect?

I noticed that the Trump transition might be having a somewhat bizarre side effect– on the relative rankings of US law schools. Above the Law on Friday published its which have seen a shake-up, partly due to which law school’s graduates are securing coveted post-law school clerkships:

This year, we have a new number one. The University of Chicago Law School was number two last year, but takes the top spot this year. The school’s large law firm placement was up 11 percent, and its federal clerkship placement was up four percent. Their graduates are landing great opportunities, and that is reflected in our rankings.

In fact, our entire top three is different this year. Chicago is at number one, the University of Virginia School of Law is number two, and Duke Law is number three.

Hmm…

All of those schools had upticks in their federal clerkship rates. UVA was up a full eight percent, year over year. Meanwhile, Harvard Law School (ranked number 4) and Yale Law School (ranked number 7) saw their federal clerkship rates go downfour percent each.

Hmm…

It’s hard for me to look at these numbers and not see the invisible hand of #MAGA supremacy at play. As Trump and McConnell take over the federal judiciary, it’s interesting to me that more people from Chicago and UVA and Duke are getting clerkships, while fewer people from Harvard and Yale are. It could be a one-year blip… it could be a 25-year blip if the Federalist Society and Heritage Foundation continue to have their way.

Perhaps in the longer term, this change in relative law school rankings will some day flow through to a more diverse make-up of the United States Supreme Court. At present,  as I’ve discussed before (see here) all sitting Supreme Court Justices studied at either Harvard or Yale Law School (Ruth Bader Ginsburg studied at Harvard for her first two law school years and then transferred to Columbia when her husband took a New York job). This is a shift from the not so distant past, when William Rehnquist and Sandra Day O’Connor were Stanford graduates– not that adding Stanford graduates to the mix does very much other than provide some geographic diversity.

I think it would be a good idea to widen the scope of judicial appointments much more beyond merely which law school prospective justices attended, especially at the highest level. In fact, I’ve previously endorsed Judge Richard Posner’s idea that Supreme Court Justices need not be lawyers at all ( see here, quoting Posner):

Nor should appointment to federal courts including the Supreme Court be limited to lawyers. A brilliant businessman, a brilliant politician, a brilliant teacher might make an excellent judge or justice and greatly improve a court, relying on brilliant law clerks for the legal technicalities, which anyway receive far more attention from judges than they should, because most of the technicalities are antiquated crap.

I concede, however, that this is unlikely to happen anytime soon (if ever).

The reality today is that Trump and Senate Republicans continue effectively to seat judges who pursue their agenda– and many of these appointees will continue to rule from the bench for a very long time. Unfortunately, the previous administration was unable to fill vacant positions– as the Brookings report released today documents.

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33 comments

  1. The Rev Kev

    So the University of Chicago Law School graduates are at the top of the list for obtaining legal placements? Yeah, that gives me a good feeling that. If you like what the Chicago school of economics did for finance and economics in the past half century, them you will love what the Chicago Law School will do for American and International law over the next half century.

    Reply
  2. Tomonthebeach

    I think the title is missing some adjectives such as “incompetent federal judges” or “corruptible federal judges.”

    Reply
    1. cnchal

      As per James Buchanan’s “gravy train” Koch funded Venality Finishing School, the most important feature of their character is known.

      Reply
  3. Ignacio

    He follows Montesquieu’s principle for the separation of powers: the powers must be separated from the people.

    Reply
    1. George Phillies

      There is an opposition party. In fact, there are several. The American people rejected all of them.

      Reply
  4. Louis Fyne

    get used to a more conservative judiciary. as long as the Dem. strategists/pundits/news cycle keep using identity politics as a shiny object to dangle in front “progressives”

    trans-identity coalition based on economic interests is the only path forward. just saying (as an opinion)

    Reply
  5. Webstir

    A few thoughts:
    1) WTFamily blog, Obama? I was so pissed when it became clear this was an afterthought to him.
    2) Many of the worst of these judges will be looking for things to do because lawyers will avoid them. I would. There is no arguing the bulk of lawyers in this country lean left and every law firm has a list of judges they DQ as a matter of course. I just recently did in a Section 1983 lawsuit.
    3) Lawyers hate unpredictability. Especially unpredictable judges. The legal community will make it hard on these judges if they stray too far outside the legal Overton window. Bar complaints will be made, appeals had, and a microscope taken to every decision. See Judge Cebull here for example:
    Cebull was treated like a pariah by the legal community the moment he took office. It would be an interesting study if NC followed these appointees like it follows CalPERS. I think one would find, in general, these judges don’t stick around long if they buck legal norms. Not, that the legal norms in this country are all that spanky.

    Reply
    1. Jerri-Lynn Scofield Post author

      Re your first point: and he was a lawyer! How many times did we hear he was president of the Harvard Law Review. And a law professor, who taught constitutional law. Trump’s not a lawyer– although his sister was a federal judge, first at the district and then at the appellate level. Unlike the Democrats, Republicans aren’t wasting their opportunity to seat like-minded judges.

      Re your third: I think the judiciary has lurched right in the decades I’ve been paying attention, certainly on many of the sorts of issues corporations care about.

      Reply
      1. Webstir

        Oh, I absolutely agree with the judiciary lurching to the right. All I’m saying is there is an army of lefty lawyers out there who minimize the damage they’re able to do.

        Reply
        1. Arizona Slim

          And that sister is Maryanne, who the president is still quite close to. And, get this, Bill Clinton appointed her to the federal bench.

          Link:

          Reply
          1. Jerri-Lynn Scofield Post author

            That’s certainly worth highlighting. Ronald Reagan made her a federal district court judge in 1983, and Clinton elevated her to the Court of Appeals for the 3rd Circuit in 1999. Bipartisanship in action!

            Reply
              1. Jerri-Lynn Scofield Post author

                The Clinton connection is the more interesting fact– no one’s surprised to hear that Reagan put a Trump on the federal bench. That Clinton promoted her to an appellate seat– of which there are many fewer than district court gigs– is surprising. Wish I knew more about how that came about.

                Reply
  6. Webstir

    And now, I ask the community: Would it have been worth taking it in the shorts for a few years by doing a serious nausea check and actually voting for Hillary to keep from destroying the gains that had been made in court appointments?

    I railed on this point as soon as it became clear Hills had stolen the primary from Bernie. I was railed back against by many in this community. I’m not arguing, just wondering: has anyone changed their mind?

    Reply
    1. Louis Fyne

      -Would it have been worth taking it in the shorts for a few years by doing a serious nausea check and actually voting for Hillary –

      Call me selfish, I’d rather be alive with a right-wing judiciary than living in the cloud of WWIII.

      Highly likely: Hillary would’ve established a no-fly zone in Syria.
      scarily possible: Russians shoot down an American plane.
      scarily possible 2: Hillary, to prove that a woman can be as big of a pathological nutjob chicken-hawk as any man, bombs the main Russian base in Syria.

      trump: russian roulette w/3 bullets in chamber.
      hillary: playing w/5 bullets

      Reply
  7. Pat

    As I recall, having the same party control the White House AND Congress doesn’t lead to confirmation of judges either when that party is the Democratic Party. See the abysmal rate of judges confirmed for the first part of the Obama administration.

    Mind you it helps when your voters and your campaign donors expect you to nominate the same type of judges. When your voters expect you to nominate jurists who recognize human, women’s, employee and consumer rights over those given to corporations, banks and the state it slows down the process a little to handle the PR problem.

    Reply
    1. Jerri-Lynn Scofield Post author

      Excellent point– and one I should have mentioned in my post. Thanks for making it here.

      Reply
    2. RUKidding

      I agree with you, Pat, and truly it was what I was also thinking.

      The Dems did a totally LOUSY job from 2008 – 2010 when they had the majority and the WH, and what happened? Crickets. I was totally pissed off bc I work in the legal field (not a lawyer), and I’m VERY aware of what’s happening with the Judiciary at all levels.

      I would not say, as one commenter posited above, that lawyers tend to lean left, but I would posit that – previous to the Trump Admin – most Judges tried to be impartial and make their decisions based on the REAL Rule of Law. With Trump judiciary appointments, you can forget about that, STAT. Rule of Law? Pull the other one, especially if you’re white and rich or more importantly a corporation.

      Obama really really really dropped the ball on judicial appointments, and he should have been more forceful even once the Reps were in control of Congress. He just sat around waffling, even with the SCOTUS appointment.

      Useless POTUS. Also didn’t do nearly enough clean up at the DOJ, as is traditional. Left a LOT of GW Bush appointees in place for no good reason.

      Here’s the obligatory: Thanks, Obama.

      Loath Trump but have to hand it to Republicans: they definitely get things done and see that their nefarious agendas are enacated. Democrats?? Not so much.

      Reply
      1. Lord Koos

        I’m not sure the Democratic party has an agenda, other than keeping the gravy flowing. They don’t seem that interested in winning elections either, as long as everyone is still getting paid.

        Reply
    3. flora

      And, naturally, Reid et al blamed those mean ol’ Republicans for thwarting the will of the Congress. It’s almost like the Dems in Congress won’t fight for their Dem voter base. (They’ll fight like tigers when necessary to help pass the GOP’s programs, however. The whole bunch reminds me of a cheating husband who declares to his wife he’s failthful, while playing footsy with the ‘other woman’.)

      Reply
    1. Webstir

      Also, yes, there are too many lawyers. However, the numbers are deceiving. The only countries where you can call the people advocating on behalf of their clients “lawyers” are the common law countries that have “adversarial” legal systems. Primarily, those heavily influenced or under the British empire. The rest of the world practices civil law, which is largely driven by judges and the lawyers don’t generally argue, they simply interpret code.

      Reply
  8. David

    The ABA has discussing federal judicial vacancies.

    shows that vacancies have increased under Trump, from 106 to 142.

    shows that Obama only submitted 76 nominations during the 114th Congress. The 114th started with 45 vacancies and ended with 103. 22 judges were confirmed.

    According to the ABA, the 114th Congress returned 34 Obama nominations. This is fewer than the 43 Obama nominations returned by the 111th Congress, when the Democrats controlled the Senate.

    Reply
  9. Jean

    President Jimmy Carter addressing the NAACP convention in 1970s:

    “If there’s one thing I want you to remember today, it is that the federal judges I appoint will go on interpreting your rights for the rest of your life…”

    Carter good, but Trump bad. Got partisanship?

    Reply
    1. drumlin woodchuckles

      Psycho-Tribal partisanship is bad. Policy partisanship is good. If the parties and people were both Policy partisan, we would have a real choice. But only the Republican party is policy partisan. The Fake Democrat party is Psycho-Tribal partisan . . . to herd, drive and string along its Psycho-Partisan supporters and voter-base into supporting its Fake Democrat collaboration with the policy partisan Republican party.

      Was Carter being a Psycho-Tribal partisan when he made that statement? Or was he being a policy partisan? If he was being a policy partisan, he was implying that his judicial appointments believed that people had rights and deserve to have rights. If so, that was good and Carter was a good policy partisan in that regard.

      Reply
  10. charles Yaker

    For what it’s worth and always ignored. The Federalist Society is a phony. Tauting “original Intent” when it suits them remember Scalia and Second Ammendment. Furthermore Gorshuch and vacancys result of coup. That can be reversed by an FDR and Bernie too old for the role. Can Minnesota Gov be drafted? Not that i am that familiar with him just guessing.

    Reply
    1. drumlin woodchuckles

      Bernie too old to be an FDR? But is there a younger possibility? One with desire and policy-credibility for that task built up over time?

      I don’t care if Bernie is too old. I will vote for him anyway. Better a too-old who means it than a young-enough who is a liar and a faker. And anyone and everyone who ever had anything to do with the Clinton Machine or the Obama Machine or the Mainstream Fake Democrat Party Apparatus . . . . is a liar and a faker.

      Reply
  11. blennylips

    Tauting “original Intent”

    A very interesting study going on over at Lanuage Log based on the “Corpus of Founding Era American English” recently created at BYU.

    These posts are going to focus on the meaning of the phrase keep and bear arms and on the Court’s analysis of that phrase. I won’t be talking about the other parts of the Second Amendment (a well-regulated militia, the security of a free state, the right of the people, and infringed).

    The discussion will concentrate on linguistic issues rather legal issues. I won’t be talking about whether the Court’s holding in Heller is correct. I will, however, talk about what my linguistic analysis means for Heller’s conclusion that the Second Amendment’s text is unambiguous and therefore that the prefatory clause plays no role in the amendment’s interpretation.

    I can hardly wait…check popcorn stocks…

    Reply
  12. kj1313

    There is some leftists who believe the only way to challenge this is to start impeaching the judges and start packing courts and this will only happen if we can either take over the Democratic Party or accelerate burning it down.

    Reply

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