Sunday’s New York Times Magazine has a very long and interesting article on (as the online title puts it) “How the Trump Administration Is Remaking the Courts.”
The article focuses in particular on President Trump’s tremendous success in appointing judges to the federal courts of appeals. It recognizes the critical roles that outgoing White House Counsel Don McGahn, Senate majority leader Mitch McConnell, Leonard Leo, and the Federalist Society have played in that success. (I would also give lots of credit to Senate Judiciary Committee chairman Chuck Grassley.) It also highlights that “Trump’s appointees have tended to be unusually well credentialed and conservative.” (The ABA, no friend of conservatives, rated 23 of Trump’s 26 appointees, or 88%, “well qualified”; by contrast, it gave that rating to only 11 of President Obama’s 16 appellate appointees—69%—during his first two years in office.)
I won’t try to summarize the article here—the interested reader should read it—but instead offer some dissenting observations and corrections.
1. In my judgment, the article gives an exaggerated impression of the long-term impact of the appellate appointments that have been made so far—24 as of the time the article was written, 26 as of Sunday. Yes, the Trump White House has set a record for a president’s first two years. But 26 judges amounts to barely 13% of the 179 federal appellate seats. Further, as Brookings scholar Russell Wheeler explains in “Trump has reshaped the judiciary but not as much as you might think,” most of Trump’s appointments (16) have been to seats previously held by Republican appointees, so they have maintained (and extended in time), rather than altered, the composition of the various courts of appeals.
The article asserts that Trump has “flipped” the Sixth and Seventh Circuits from liberal to conservative and that he is “on the verge” of flipping the Eighth Circuit. But all three of those courts already had more Republican appointees (the article’s proxy for conservative) than Democratic appointees when Trump took office.
The article also asserts that “[e]ven circuits that are decidedly liberal are undergoing significant changes” and quotes a source on the value of having “between two and four really good, high-octane intellectual conservative jurists” on the liberal Second and Ninth Circuits. But so far Trump has made no appointments to the Second Circuit, and his only appointee to the Ninth Circuit, Mark Bennett in Hawaii, is widely perceived as moderate if not liberal.
The article includes a hilariously misleading graphic that uses gavel handles of various lengths to depict how Trump’s record compares to those of recent presidents. Trump’s gavel handle is ten times the length of Obama’s, but only because the graphic uses a baseline of 14 judges rather than zero.
In short, the Trump White House is off to an excellent start, but this strong performance needs to be sustained over several more years in order to effect the “sweeping transformation” of the federal appellate courts that the article’s subhed touts.
2. The article completely misses one big part of the story—how Harry Reid’s abolition of the filibuster for lower-court nominees in November 2013 was essential to the success that Trump has enjoyed. As I explained in my National Review article in January on Trump’s first year of judicial appointments, the abolition of the filibuster meant that the path to confirmation in a Senate controlled by the same party as the president could be fairly certain and quick, and “that promise of a smooth path encouraged high-quality conservatives—the very folks who might reasonably have feared a filibuster and been most reluctant to put their careers in indefinite limbo—to offer themselves as candidates.”
The article discusses Reid’s abolition of the filibuster more than halfway through, but it doesn’t connect that change to the significant developments it discusses early on: McGahn’s decision to go with nominees who would be “really hot” rather than low-profile; his “unprecedented degree of control over judicial appointments” and his unwillingness to engage in “horse-trading” with senators; and the “unusually well credentialed and conservative” profile of the nominees.
3. I think that the article’s account of the ascendancy of “the judicial philosophies of originalism and textualism” among legal conservatives gets some important things wrong. The article asserts that those philosophies “hold that judges should interpret the Constitution according to the meaning of its plain text.” (Emphasis added.) But originalism and textualism do not maintain that the text of the Constitution (or of other laws) is in all respects “plain.” Often the meaning of legal text is obscure. Originalism and textualism set forth a methodology for discerning the meaning of text that is not plain. (For similar reasons, I think that the article’s claim that originalists and textualists believe that “Unless Congress explicitly mandates it …, agencies can’t do it” is wrong.)
The article also implausibly claims that originalists and textualists “didn’t achieve critical mass in the larger conservative legal movement until 2012.” But originalism and textualism have been ascendant in the conservative legal thinking since the early 1980s, thanks to Justice Scalia, Judge Bork, Attorney General Ed Meese, and others. The article instead conflates originalism with the libertarian variant of originalism and seems not to recognize that there has long existed another variant of originalism in which a judge, after deploying the originalist tools, may deem a statute unconstitutional only if it clearly conflicts with the meaning of a constitutional provision. That variant might fairly be called judicial-restraint originalism, but it differs markedly from any concept of judicial restraint that is unmoored from originalism.
4. With regard to the three D.C. Circuit nominees pending in 2013, the article asserts that Senate Republicans “didn’t object to the nominees themselves; all three were considered moderate and eminently qualified.” That assertion is flat-out absurd as applied to Cornelia Pillard. (I think it’s wrong as to the other two as well, but I gather that every liberal is a “moderate” in the eyes of the New York Times.)
5. The article has a very long account of the battle over a Seventh Circuit seat in Wisconsin. I explained back in 2011 how Senator Ron Johnson’s refusal to return a blue slip on Obama’s nomination of law professor Victoria Nourse was, contrary to what the article suggests, well within the bounds of Senate practice.
The article also fails to note the mystery of why the Senate Judiciary Committee, under then-chairman Pat Leahy, didn’t hold a hearing on her nomination promptly after Obama first nominated her in July 2010 (when both of Wisconsin’s senators were Democrats). I’ll refrain from commenting further, but will observe that the reason may well have persisted throughout the pendency of her nomination.
As evidence that Nourse was (what else?) a “moderate,” the article states that “besides working for [then-Senator] Biden, Nourse worked on the Judiciary Committee with Orrin Hatch, a Utah Republican.” Note the wordplay: she “worked … with” Hatch, not for him. I’m really not sure what this means. I suppose that I, as a Judiciary Committee staffer, at times “worked with” Senators Biden, Leahy, Kennedy, etc., or their staffs, so does that mean I’m a “moderate”?