The Impact of Conservative Courts — Future Hindsight

During our conversation with law professor Robert L. Tsai, we discussed how courts and the judges that sit on them can greatly help or greatly hurt the causes pushing for equality in America.

Listen to our interview with him here!

One of the most important (and worrying) developments concerning the courts in recent years has been the breakneck speed at which the Trump Administration and the Republican-controlled Senate have pushed judicial nominations through. While some of these appointments have invited a significant amount of public scrutiny-such as the bruising and controversial nomination and ultimate confirmation of Brett Kavanaugh to the Supreme Court-most have slipped under the radar. Since his election in 2016, Trump has reshaped the American court system in an unprecedented way, so we thought we’d take a look at it.

Appointments by the Numbers

Trump has been in power for almost three full years, and the pace at which he has nominated judges to all levels of the federal judiciary can easily be described as ‘breakneck’. According to the conservative Heritage Foundation’s Judicial Tracker, Trump has already appointed a record 187 judges who have been confirmed by the Senate, all in just three years. Compare that to Obama’s 124 and George W. Bush’s 169, who each served 8 years, and you begin to see the magnitude of Trump’s impact on the court system.

Thanks to Republicans’ massive push to remake the courts in their conservative vision, one-quarter of all US Circuit Court judges are now Trump appointees. All told, according to the non-profit Ballotpedia, he has appointed 133 U.S. District Court Judges, 50 Appeals Circuit Judges, and 2 Supreme Court Justices. It is the President’s job to appoint judges, and it’s to be expected that conservative leaders will nominate conservative ones.

It’s not, however, to be expected that he nominates wholly unqualified judges.

A Question of Qualification

The American Bar Association gives each nominee to a federal judgeship a rating-either Well Qualified, Qualified, or Not Qualified. It’s a rigorous process, and during Obama’s eight-year administration, not a single nominee submitted to the Senate was rated “Not Qualified” by the Association. Already, Trump has had seven “Not Qualified” nominees appointed to lifetime appointments, including two in December of 2019.

Lawrence VanDyke, confirmed on Dec. 11, was called “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules,” in the ABA’s official qualification statement. Yikes.

The other, Sarah Pitlyk, received a unanimous “Not Qualified” rating, because “she has not argued any motion in a state or federal trial court. She has never picked a jury. She has never participated at any stage of a criminal matter.” She was confirmed Dec. 4. This isn’t even the first time a Trump appointee who had never tried a case was confirmed by the Senate. Justin Walker, who now sits on the U.S. District Court Western District of Kentucky, has “ never tried a case as lead or co-counsel, whether civil or criminal.”

Lifetime Appointments

Not only have Trump and the Senate confirmed a record number of judges, the average age is almost 10 years younger than the average age of judges appointed by Obama. This means we’re in for decades of conservative, sometimes unqualified, judges shaping national policy. Even if Democrats win big in 2020, much of their progressive agenda could be sabotaged by someone who has never even tried a case.

That, to us, doesn’t seem like the way things should work.

WORKS CITED

• “Federal Judges Nominated by Donald Trump.” Ballotpedia, ballotpedia.org/Federal_judges_nominated_by_Donald_Trump.
• Hubbard, Willam C. “Nomination of Sarah E. Pitlyk to the United States District Court for the Eastern District of Missouri.” Received by The Honorable Lindsey Graham, The Honorable Dianne Feinstein, 24 Sept. 2019.
• Hubbard, William C. “Nomination of Justin R. Walker to the United States District Court for the Western District of Kentucky.” Received by The Honorable Lindsey Graham, The Honorable Dianne Feinstein, 30 July 2019.
• Hubbard, William C. “Nomination of Lawrence J.C. VanDyke to the United States Court of Appeals for the Ninth Circuit.” Received by The Honorable Lindsey Graham, The Honorable Dianne Feinstein, 19 Oct. 2019.
• “Judicial Tracker.” The Heritage Foundation, The Heritage Foundation, www.heritage.org/judicialtracker.
• Klar, Rebecca. “Trump Has Officially Appointed One in Four Circuit Court Judges.” TheHill, The Hill, 7 Nov. 2019, thehill.com/homenews/administration/469519-trump-has-officially-appointed-one-in-four-circuit-court-judges.
• Mathis, Joel. “Brett Kavanaugh’s Hasty Confirmation Is a National Embarrassment.” Image, The Week, 17 Sept. 2019, theweek.com/articles/865375/brett-kavanaughs-hasty-confirmation-national-embarrassment.
• Millhiser, Ian. “What Trump Has Done to the Courts, Explained.” Vox, Vox, 20 Dec. 2019, www.vox.com/policy-and-politics/2019/12/9/20962980/trump-supreme-court-federal-judges.
• Rawles, Lee. “Second Trump Judicial Nominee Gets ‘Not Qualified’ Rating from ABA: What’s the Rating Process?” ABA Journal, www.abajournal.com/news/article/standing_committee_on_federal_judiciary_not_qualified_rating.
• Savage, Charlie. “Ratings Shrink President’s List for Judgeships.” The New York Times, The New York Times, 22 Nov. 2011, www.nytimes.com/2011/11/23/us/politics/screening-panel-rejects-many-obama-picks-for-federal-judgeships.html.
• Thebault, Reis. “Trump Nominee Who Is Anti-IVF and Surrogacy Was Deemed Unqualified. She Was Just Confirmed.” The Washington Post, WP Company, 6 Dec. 2019, www.washingtonpost.com/politics/2019/12/04/trump-nominee-who-is-anti-ivf-surrogacy-was-deemed-unqualified-she-just-got-confirmed/.
• Todd, Ross. “Senate Confirms Trump’s 10th Ninth Circuit Appointee, Lawrence VanDyke.” The Recorder, 11 Dec. 2019, www.law.com/therecorder/2019/12/11/senate-confirms-trumps-10th-ninth-circuit-appointee-lawrence-vandyke/.
• “United States District Court: Justin Walker.” District Judge Justin Walker | Western District of Kentucky | United States District Court, www.kywd.uscourts.gov/content/district-judge-justin-walker.

Originally published at https://www.futurehindsight.com on January 8, 2020.