Thursday, November 7 was a fateful day for the courts in America.
By an 86-2 margin, the U.S. Senate approved William Nardini to a lifetime appointment on the Second Circuit Court of Appeals — Trump’s 45th appointment of an appeals-court judge. On the same day, the Senate Judiciary Committee approved another judicial nominee of Trump’s, Steven Menashi, an ally of Stephen Miller and Education Secretary Betsy DeVos with a history of inflammatory statements about Islam, LGBT people, and race. Menashi’s nomination now goes to the Senate floor where it appears likely he too will be confirmed to a lifetime position on the Second Circuit. If confirmed, Menashi would fill the seat once held by Thurgood Marshall.
Nardini’s confirmation is a terrifying new milestone for Trump: One out of every four judges at the circuit court level is now a Trump appointee. Here’s another statistic: In less than three years, Trump has appointed 45 appeals-court judges, while President Obama appointed 55 appellate judges in his eight years in office. The explanation for Trump’s success is the same for Obama’s failure to appoint more: Mitch McConnell.
Few politicians in modern history have grasped the importance of stacking the courts with ideological allies — and done more to realize that vision — than McConnell. After taking control of the Senate in 2015, the Kentucky Republican spent the the final years of Obama’s presidency blocking new judicial appointments. The result was Trump entered office with 112 vacancies to fill. At a White House press conference this week touting his success with judicial appointments, Trump described how McConnell urged him to keep his focus on judges. “Of course, I’d like to get some other people confirmed too,” Trump said. “Mitch would say, ‘Well, we got to do the judges first.’”
Trump’s two appointees to the Supreme Court often get most of the attention when it comes to this administration’s judicial track record, but the circuit courts are the “de facto Supreme Court to the vast majority” of Americans, as Sen. Dianne Feinstein (D-Calif.). The Supreme Court hears only 70 or 80 cases a year; the nation’s nine circuit courts hear close to 60,000 cases. “These are the judges that have the greatest influence,” John Malcolm of the Heritage Foundation told me last year. “The buck stops at the courts of appeals.”
And it’s not just that Trump has appointed new judges at a blistering pace. These judges skew young — their average age is less than 50, which means they’ll serve for decades. They’re overwhelmingly white — data kept by the Federal Judicial Center says only six of Trump’s new appellate judges are non-white. Only one is a woman of color.