Trump judges are on a tear
Among the provocative rulings by Trump-appointed judges:
- A Trump appointee in Arkansas ruled in February that the Voting Rights Act could not be enforced by individuals or groups, despite more than five decades of such litigation.
- In May, another Trump appointee in Florida overturned arguments scheduled in a challenge to the federal mandate for the use of masks on transportation, then rushed a decision overturning the requirement just days before it expired.
- Also in May, a Trump-appointed federal judge in Texas blocked the Biden administration from lifting pandemic-related immigration restrictions imposed by Trump in 2020.
These sweeping decisions have fueled questions about whether Trump’s judicial choices are more conservative or more partisan than those of previous Republican presidents and so decades of unorthodox decrees of those judicial choices lie ahead.
In absolute numbers, Trump’s impact on the federal justice system has been profound. In just four years in office, he replaced a third of the Supreme Court, 54 members of the circuit courts of appeals and 174 district court judges. In all, about 30 percent of the federal bench.
Trump’s appeals court justice count was just one shy of the number former President Barack Obama managed to get off the bench in twice as long. The 11th Circuit, which is expected to hear the government’s appeal against Cannon’s special order, is a majority Trump court with six of the 11 active justices appointed by the 45th president.
Trump’s preference for younger candidates also means his judicial choices could hand down rulings for the next half-century.
Trump has made it clear that he expects unwavering loyalty from the judges he has appointed, calling them “my judges” and complaining publicly when they have spoken out against his administration.
“If it’s my judges, you know how they’re going to decide,” Trump assured evangelical leaders during the 2016 campaign.
Trump’s repeated attacks on judges during this campaign and the early stages of his presidency led to an unusual public rebuke from Chief Justice John Roberts in 2018.
“We don’t have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said then. “This independent judiciary is something we should all be grateful for.”
Still, some recent legal forays into particularly political cases have raised questions about whether the Trump justices have a particularly partisan bent.
A March ruling by a Trump appointee in North Carolina ended state-level proceedings to disqualify Rep. Madison Cawthorn (RN.C.) for re-election because of his support for efforts to overturn the results of the 2020 presidential election. (A federal appeals court overturned the decision two months later and Cawthorn lost its primary , rendering the dispute moot.)
Other times, the unorthodox orders extend to the White House, such as when a Trump-appointed judge in Louisiana issued a highly unusual ruling last week forcing President Joe Biden’s White House to drop communications with the social media companies regarding alleged objectionable content. The judge’s forceful approach to discovery in the case came despite the fact that similar lawsuits Trump filed against major social media companies two years ago failed in court.
But are these rulings the product of a handful of eccentric judges, or are the Trump judges somehow different from their predecessors, even those appointed by Republican presidents?
Academics who have scoured the data say Trump’s justices do indeed appear to be different, both in their rulings and backgrounds, though some of the differences are surprising.
“His justices, on the whole, are very conservative — more conservative than George W. Bush’s justices, who are quite conservative,” said Kenneth Manning, a professor of political science at the University of Massachusetts at Dartmouth, who has studied Trump’s first trial court justices for a 2020 article.
Trump appointees are the most conservative of the last 10 presidents, according to the study, particularly on issues of civil rights, civil liberties, labor and economic regulations. However, Trump’s judicial choices were more liberal when deciding on criminal justice issues, Manning and his co-authors found.
In fact, Trump appointees were significantly more pro-defendant in criminal cases than Reagan appointees, who ranked the most conservative in this area over the half-century studied. Some point to the difference with the kind of suspicion of federal law enforcement that Trump has expressed during his presidency and since, as well as broader skepticism in Federalist Society circles about aggressive lawsuits against white collar crime.
“The Trump judges are not the pro-law enforcement judges that, say, the Reagan judges were,” Manning said.
Another scholar who studied Trump’s appeals court picks found that their resumes tended to be lighter on experience as federal prosecutors.
“The Trump administration [nominees] were a bit different, more likely to come from state courts or state attorney general’s offices. … They were also more likely to have worked in the White House or the Department of Justice,” said David Zaring, a professor at the Wharton School of Business. “The biographical difference that has really stood out for Trump appointees compared to his predecessors is really much more executive branch service.”
A Zaring study published in 2020 of Trump’s appellate judicial nominees found they were younger, had spent more time in politics and less time in private sector legal jobs than their predecessors. The track record of Trump’s choices suggests they are more likely to make decisions that surprise others in the legal sphere, he said.
“To the extent that you kind of have more political judges in the Trump administration…it’s going to be harder for lawyers to predict,” the professor said. “You just have a lot more variations and a lot more people who may be outliers in one way or another. … Even though the curators have been diligently cultivating this farm team, the farm team just isn’t that great.
One of the reasons some Trump-appointed justices may seem more eccentric or even extreme than their colleagues is that Trump’s nominees were typically chosen from a smaller pool of candidates. Some legal conservatives have refused to be considered for jobs in the executive and judicial branches because of their distaste for Trump or fear of being tarnished by their association with him.
Others who were willing to accept a nomination had their offers derailed by a White House and a President notoriously sensitive to any hint of public criticism or potential disloyalty.
Despite some rulings that have backed Trump or his allies, his judicial choices have barely turned out to be consistent with Trump’s political desires. Trump’s efforts to void the 2020 election have been met with strenuous rejection from some of his own appointees, who in some cases have issued rulings eviscerating claims by Trump allies and expressing concern over the relief they were looking for. His three U.S. Supreme Court appointees voted with their colleagues to dismiss a lawsuit in Texas in December 2020 challenging the election results.
“This Court has been presented with strained baseless legal arguments and speculative accusations, unaddressed in the Operational Complaint and unsupported by evidence,” Trump appointee Matthew Brann wrote in a stark dismissal of a lawsuit. Trump seeking to block the certification of the results of the presidential election in Pennsylvania.
“The plaintiffs seek to remedy the denial of their votes by invalidating the votes of millions of others. Rather than asking for their votes to be counted, they seek to discredit dozens of other votes, but for one race only. That’s just not how the Constitution works,” Brann said.
In Washington, DC, Trump’s four appointees to the federal district court aligned themselves almost evenly on issues arising from the January 6, 2021 attack on the Capitol. While Trump has described the prosecution and pre-detention of some suspects as unduly harsh, his judicial nominees have described the effort to end electoral vote certification as an attack on democracy and worthy of harsh punishment. for those who have committed violence or worked to flout law enforcement.
“There was nothing patriotic about what happened that day, far from it,” Judge Timothy Kelly said last month as he handed down a four-and-a-half-year sentence to a member of the Proud Boys who joined in the Capitol Riot. “It was a national disgrace.”
Kelly also issued a detailed ruling blessing the Jan. 6 select committee’s efforts to subpoena Republican National Committee data, held by a third-party vendor, in an opinion that completely dismissed efforts by Trump allies to discredit the panel. .
However, where there have been differences over the Jan. 6 lawsuits, they almost all come from Trump appointees. Judge Trevor McFadden entered a defendant’s only acquittal on Jan. 6, finding it plausible that he believed police allowed him to enter and remain in the Capitol. Judge Carl Nichols became the only district judge to rule that the obstruction charges against multiple defendants should be dismissed.
But Nichols, too, has been unpredictable. As presiding judge in Steve Bannon’s contempt of Congress trial, he issued a series of rulings undermining Bannon’s defense and also agreed that the select committee was properly constituted. Nichols is expected to rule shortly on a subpoena from the select committee for the testimony and records of former Trump chief of staff Mark Meadows.
Trying to guess exactly what the Trump administration’s standards and goals were for district court nominees is especially difficult because, outside of DC and a few other places, senators have veto power over judges. district courts under the so-called “blue slip” rule. This power sometimes forces White Houses to enter into agreements in which they accept compromise candidates they might not otherwise have named, in exchange for senators’ endorsement of the president’s preferred nominees.
During Trump’s presidency, he often argued that liberal justices were bending the law to block his most controversial policies like the border wall and the so-called Muslim ban. But even some scholars who have criticized this trend as establishing a unique type of “Trumplaw” now say the term can be applied to some of the recent decisions favoring Trump’s legal positions.
“This stuff is completely irrelevant and unfortunately Cannon has tended to accept it,” said George Washington University law professor John Banzhaf. “She’s running a sort of reverse Trump law: whatever Trump wants, I’ll take the most ridiculous argument and get away with it.”