Just over a year and a half ago, I published a piece entitled, “Courting Success, Bigly.” “Bigly” does not sufficiently articulate how dramatically successful President Trump and Senate Republicans have been in ameliorating our courts.
The most stark change, of course, occurred with the confirmation of Justice Brett M. Kavanaugh to the Supreme Court. Kavanaugh replaced Justice Anthony M. Kennedy, the Court’s pivotal vote for more than a decade on issues including: (1) abortion; (2) same-sex marriage; (3) affirmative action; (4) executive power; (5) the death penalty; (6) the Second Amendment; and (7) partisan gerrymandering. Democrats knew how critical Kennedy’s retirement was; that is why Senate Minority Leader Charles E. Schumer of New York vowed to fight Kavanaugh with everything he had. That is precisely what Democrats did, and Kavanaugh barely made it over the confirmation finish line by a 50-48 vote.
Kavanaugh has served on the Court for less than a full term, but his impact can be illustrated through an examination of one case. In Bucklew v. Precythe, Kennedy had provided the fifth vote to stay the execution of Russell Bucklew, a Missouri death row inmate. Bucklew alleged that the drugs administered during his lethal injection would cause tumors in his throat to rupture, thereby causing him extreme agony that would amount to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the Constitution. On April 1, the Court ruled that Bucklew’s claim lacked merit. The vote was five to four; Justice Neil M. Gorsuch, Trump’s other Supreme Court appointee, wrote the majority opinion, and Kavanaugh joined it. Law professor Stephen Vladeck of the University of Texas—a prominent liberal legal scholar who serves on the Board of Academic Advisors of the American Constitution Society (the liberal alternative to the Federalist Society)–summarized the significance of this case well in a piece published in Politico Magazine entitled, “It’s Neil Gorsuch’s Supreme Court Now, Not Anthony Kennedy’s.”
The difference between Kavanaugh and Kennedy also could be seen in one of the previously discussed areas in which Kennedy was the pivotal vote: partisan Gerrymandering. On March 26, the Supreme Court heard two cases on the issue: Lamone v. Benisek and Rucho v. Common Cause. In a string of cases, Kennedy, in effect, opined that partisan Gerrymandering might be unconstitutional, but he never provided a specific framework for so determining. In two cases decided just before Kennedy’s retirement, the Court essentially punted the issue because Kennedy still declined to stake out a definitive position. This stalemate now may end with the addition of Kavanaugh. Overall, the replacement of Kennedy by Kavanaugh is just beginning to have the impact that supporters and opponents of Kavanaugh suspected.
While Supreme Court appointments are the most important, many cases are never heard by the Court; rather, courts of appeals decide most cases. The Supreme Court grants certiorari—in other words, agrees to hear a case—in approximately one percent of instances in which parties seek review. President Trump has been diligent in nominating stellar candidates to these courts. The Senate has thus far confirmed forty-one of President Trump’s nominees, including six to the notoriously liberal Ninth Circuit. The last two, Kenneth Lee and Daniel Collins, replaced two liberal icons: Judge Harry T. Pregerson, who assumed senior status in December 2015; and Judge Stephen Reinhardt, who passed away in March 2018.
Senators Charles E. Grassley of Iowa and Lindsey Graham of South Carolina—the two chairmen of the Senate Judiciary Committee under President Trump—have done a marvelous job of streamlining these nominees through the Judiciary Committee. These chairmen have thwarted Democrats’ attempts to block nominees by, among other things, declining to allow the use of blue slips—slips of paper that indicate whether a home-state senator supports or opposes a nominee—to curtail the progress of nominees. Senate Majority Leader Mitch McConnell of Kentucky has been ruthlessly efficient in bringing nominees to the floor for votes after the Judiciary Committee has reported the nominees. These judges are already having a significant impact; indeed, People for the American Way, a liberal advocacy group, has published over eighty articles in a blog series entitled, “Confirmed Judges, Confirmed Fears.” While the group is critical of these judges, it concedes their significant impact on the law.
The pace at which President Trump’s circuit court nominees are being confirmed is historic. President Obama did not have forty-one circuit court confirmations until the end of his fifth year. President Bush did not arrive at that point until midway through his fifth year. President Clinton took until a few months into his sixth. President George H.W. Bush had forty-two circuit judges confirmed in his term. President Reagan did so midway through his fifth year. The closest comparison to President Trump can be found in President Carter, who had his forty-first circuit judge confirmed in the fall of his third year. President Carter, however, had no Supreme Court appointments.
There are only four current or future circuit court vacancies without nominees: two in the Second Circuit; one in the Fifth Circuit; and one in the Ninth Circuit. Two nominees–District Judge Peter J. Phipps and Kirkland & Ellis partner Daniel Bress–are pending for vacancies in the Third and Ninth Circuits, respectively. Other nominees should soon be submitted, and, as Hugh Hewitt recently pointed out in The Washington Post, it would be enormously helpful if judges with a similar judicial philosophy to that of President Trump would assume senior status and allow the president to fill the resulting vacancies. Regardless of how many of these judges elect to do so, the success will only become more bigly.
A Warning About The Future
“Don’t let the Democrats take it away from us. They’ll take it all away. They’ll take it all away, including the judges.”
President Trump spoke these words during a speech to The Republican Jewish Coalition in Las Vegas on April 6. Though he did not elaborate further, the president is entirely correct. Liberal judicial advocacy groups such as Demand Justice—led by Brian Fallon, Hillary Clinton’s former chief spokesman—have called for an expansion of the Supreme Court; Demand Justice wishes to increase the number of justices from nine to thirteen. Professor Aaron Belkin of San Francisco State University founded a group called Pack the Courts; the name says it all. Several Democrats vying for the presidency have endorsed “court reform,” though not all have provided specifics. For example, Mayor Pete Buttigieg has proposed expanding the Supreme Court to fifteen justices, with five appointed by Republicans, five by Democrats and the other five by the first ten justices. Other presidential candidates support a court packing plan, including Senator Elizabeth Warren of Massachusetts and former Representative Robert Francis O’Rourke of Texas. Several Senate Democrats who are not seeking the presidency have shown interest in the court packing plan, ranging from outright supporters like Mazie Hirono of Hawaii to those senators who have declined to rule it out like Richard J. Durbin of Illinois.
Trump has done a masterful job when it comes to judicial selections. To underscore that point, Republican National Committee Chairwoman Ronna Romney McDaniel wrote a piece in The Hill earlier this month entitled, “Donald Trump has secured the future of our American courts.” If next year’s elections do not go well, however, there exists a good chance that this accomplishment will be wiped away. President Trump needs to focus on this issue throughout the next year and a half so that voters understand precisely what is at stake, not only when it comes to the presidential race but also with respect to competitive House and Senate contests. The Supreme Court and lower courts can only be expanded via legislation. The president and his allies need to make clear that a vote for a House or Senate Democrat is a vote for a court packing plan. (Many leftists also desire to pack lower courts; after all, one group is called Pack the Courts.) The president should spend several minutes during his acceptance speech at the Republican National Convention and at every campaign rally articulating the gravity of this threat. He also should make it a focus of his debate preparation to raise this issue at every possible opportunity during the three presidential debates. It is insufficient for the president merely to mention Gorsuch and Kavanaugh, a hypothetical Supreme Court vacancy in the next four years, and the overall number of judges that he has nominated and the Senate has confirmed. If the president fails to convey this message and is defeated, success will not be courted; disaster will–bigly.
Larry Schweikart is the co-author of “A Patriot’s History of the United States” (Sentinel) with Michael Allen and is the author of the newly released “Reagan: The American President’ (Post Hill Press)
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