It was one of the mainstays of the alliance of the Republican Party with Trump. They would accept his agenda, his ways, his strident leadership, in exchange for transforming the Judiciary together. They would place a battalion of loyal conservative justices, chosen by like-minded groups, on the federal appeals circuit and on the Supreme Court. The operation would give them much greater power than a four-year presidential term.
In the last three decades, Republicans have only won the popular vote in one presidential election (the reelection of Bush Jr. in 2004). Few hope they will get them either in the elections on November 3. But, even if the Democrats win the presidency and Congress in addition to the popular vote, as the polls predict, the Conservatives could neutralize the reforms promoted by the social majority. The judges carefully chosen by Trump have already begun to transform the country's legal order in a more conservative direction, on issues such as immigration, climate change, abortion, electoral rights or gun control, moving the spirit of the laws away from the feelings of the majority of Americans.
The jackpot is the confirmation of Amy Coney Barrett for Supreme Court Justice, which will surely take place this Monday, when it is approved by a simple majority by Republicans in the full Senate. It is the third judge that President Trump has placed on the Supreme Court in four years. A record for a single presidential term.
But it is only the tip of the iceberg. In just four years, Trump has appointed 163 district judges and 53 appellate circuit judges. One in three Supreme Court justices, and almost the same proportion of the 179 justices of that previous instance, have been put there by Trump. There are 35 more pending confirmation in the Senate. Obama, in twice the time, in two terms, was able to appoint two justices of the Supreme Court and 55 of the appeals circuit.
During Trump's tenure, the trend on Capitol Hill has been the lockdown. There has hardly been any far-reaching legislation and the president has governed under executive orders. But the senators have not been idle. They have gone ahead, without much noise, with their task, a priority since at least 2017, of transforming the judiciary. In the month of September alone, in the midst of a pandemic, a dozen judges have been appointed.
Part of the blame is on the Democrats. Traditionally, confirmation in the upper house of appellate judges required a qualified majority of 60 out of 100 senators. But in 2013, to get around the obstruction of the Republican minority led by Mitch McConnell, they changed the rules so that a simple majority would suffice. In the legislative elections of 2014, Republicans retaken the majority in the Senate, and blocked Obama's appointments of judges. The most notorious was his refusal to even consider in 2016 the candidate appointed by the Democratic president to fill a vacancy in the Supreme Court, claiming that it should not be done in an election year. The elections were ten months away. Four years later, the Republicans are preparing this Monday to confirm, after an express process, a Supreme Court magistrate eight days before the elections.
McConnell's block was almost total. So much so that Obama left 103 vacancies in the federal courts in addition to a vacant Supreme Court seat. When the Republicans returned to the White House, they used that simple majority of senators introduced by the Democrats to put the nomination machine at full throttle.
Two out of every three judges appointed by Trump are white males, according to a study by The New York Times, versus one in three of those appointed by Obama. They all share strong conservative credentials. At least seven of them have worked in the Trump campaign or in his Administration. And all but eight have links with the Federalist Society, a very powerful organization of conservative and libertarian jurists that advocates a textual and originalist interpretation of the Constitution, whose positions on the main social issues are marginal compared to those of the country as a whole. "We have seen our fringe positions, positions that in the past would have limited someone's options to be considered for the federal judiciary, have become the center of the conversation," said a former Trump adviser, according to the Times, in a presentation at the society's last annual convention.
The meaning that the positions are for life is to shield the political independence of the judges, free them from obedience to the party of the president that has appointed them, so that they can exercise their role as neutral interpreters of the Constitution and the laws without pressure. The problem is that this is no longer the case. The need for a qualified majority forced presidents to look for consensus candidates, who could have votes from the rival party, but now it is a game in which the party that controls the Senate confirms the judges proposed by its president and blocks the proposed by a rival party president.
Trump has broken many conventions in his presidency, and his way of understanding the judiciary, his uncomplexed politicization of justice, is one of them. He has often spoken of judges as agents of the president who appointed them (he refers to “an Obama judge,” for example) and openly uses the appointment of judges as an electoral argument, rather than as a constitutional duty of the presidency. . He ran for president with the promise of transforming the judiciary with conservative judges. Exit polls revealed that, for many Republicans, the Supreme Court was "the most important factor" in their vote.
Democrats, if they come to power, will be tempted to follow the same manual. Some go further and advocate increasing the number of seats, in the Supreme Court and even on the appeals circuit, to neutralize the impact of Trump's judges. Since 1869, the Supreme Court has been made up of nine magistrates, but the number is not in the Constitution, so a new Democratic majority could alter it. It would be a dramatic measure, which today does not enjoy the majority support of the citizens, but for many it would be the only way to govern for the majority if the conservative judicial wall prevents Democrats from implementing laws that the Republican minority do not like. After sidestepping the issue for much of the campaign, Democratic presidential candidate Joe Biden announced last week that, if elected, he will establish a bipartisan commission of academics to study different ways to reform the judiciary.
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