No president in recent memory has done more to change the judiciary than Donald Trump.
In less than three years as president, President Trump has done nearly as much to shape the courts as President Obama did in eight years.
Trump hasn’t simply given lots of lifetime appointments to lots of lawyers. He’s filled the bench with some of the smartest, and some of the most ideologically reliable, men and women to be found in the conservative movement. Long after Trump leaves office, these judges will shape American law — pushing it further and further to the right even if the voters soundly reject Trumpism in 2020.
Let’s start with some raw numbers. Both Obama and Trump appointed two justices to the Supreme Court but Trump’s impact on the highest Court far exceeds Obama’s, because Trump replaced the relatively moderate conservative Justice Anthony Kennedy with the hardline conservative Brett Kavanaugh (that was after appointing conservative Neil Gorsuch to fill Antonin Scalia’s vacant seat). Obama’s appointees — Sonia Sotomayor and Elena Kagan — largely maintained the balance of power on a conservative Court, while Trump has shoved that Court even further to the right.
On the courts of appeal, the final word in the overwhelming majority of federal cases, more than one-quarter of active judges are Trump appointees. In less than three years, Trump has named a total of 48 judges to these courts — compared to the 55 Obama appointed during his entire presidency.
At this point in the Obama presidency, Obama had appointed only 24 court of appeals judges, meaning that Trump is appointing appellate judges twice as fast as Obama. At a similar point in their presidencies, President George W. Bush had filled only 30 seats on the federal appellate bench; President Clinton, 27; President George H.W. Bush, 31; and President Reagan, 23.
On the district courts, the lowest level of federal courts, Trump’s impact has been less significant. Obama appointed 268 federal trial judges in eight years, while Trump’s only appointed 112 so far. But district judges deal far more often with routine matters like individual criminal sentences and trial schedules, and far less often with the kind of blockbuster cases that shape thousands of lives. As Justice Sonia Sotomayor said in a candid moment while she was still a lower court judge, “the court of appeals is where policy is made.”
It’s tempting to assume that Trump’s judicial appointees share the goonish incompetence of the man who placed them on the bench, but this assumption could not be more wrong. His picks include leading academics, Supreme Court litigators, and already prominent judges who now enjoy even more power within the judiciary.
Before he became president, Trump promised to delegate the judicial selection process to the Federalist Society, a powerful group of conservative lawyers that counts at least four Supreme Court justices among its members. “We’re going to have great judges, conservative, all picked by the Federalist Society,” Trump told a radio show hosted by the right-wing site Breitbart while he was still a candidate.
The Federalist Society spent decades preparing for this moment, and they’ve helped Trump identify many of the most talented conservative stalwarts in the entire legal profession to place on the bench.
There’s no completely objective way to measure legal ability, but a common metric used by legal employers to identify the most gifted lawyers is whether those lawyers secured a federal clerkship, including the most prestigious clerkships at the Supreme Court. Approximately 40 percent of Trump’s appellate nominees clerked for a Supreme Court justice, and about 80 percent clerked on a federal court of appeals. That compares to less than a quarter of Obama’s nominees who clerked on the Supreme Court, and less than half with a federal appellate clerkship.
In other words, based solely on objective legal credentials, the average Trump appointee has a far more impressive résumé than any past president’s nominees.
And they’re young, too. “The average age of circuit judges appointed by President Trump is less than 50 years old,” the Trump White House bragged in early November, “a full 10 years younger than the average age of President Obama’s circuit nominees.”
Trump’s nominees will serve for years or even decades after being appointed. Even if Democrats crush the 2020 elections and win majorities in both houses of Congress, these judges will have broad authority to sabotage the new president’s agenda.
There is simply no recent precedent for one president having such a transformative impact on the courts.