My Turn: Richard A. Arenberg: Moving Toward Politicized Courts?
Two years ago, I wrote an op-ed in The Providence Journal calling attention to how President Trump was reshaping federal courts. Then, as now, much of the shift was occurring with little public attention.
The Senate has confirmed 51 of President Trump’s circuit court nominations. This is the fastest pace accomplished by any president. His nominees now occupy 28% of the appeals court judgeships. By comparison, in eight years, President Obama gained confirmation of only 55 judges — 29 at the comparable point in his presidency.
Why do I emphasize the circuit courts? Although it is seldom recognized by most Americans, the circuit courts have a profound impact on people’s lives. They decide tens of thousands of cases each year. Most of their decisions are final. The only higher court is the Supreme Court, which typically decides, on average, about 80 cases a year.
At the time of my previous op-ed, 39 Trump-appointed judges were sitting on the federal bench. The number has ballooned to 196, with another 61 currently pending in the Senate.
However, it is the blatant partisanship which is of most concern. I have long warned about the dangers of politicizing the courts by distorting the confirmation process. I have little doubt that this is occurring now.
The White House is crystal clear about intentions: “President Trump’s historic appointments have already tipped the balance of numerous Federal courts to a Republican appointed majority.”
President Trump has proudly declared, “The pace of appointments is only accelerating ... at some point, we’re going to have to slow it down because we’re not going to have any openings ... We’ll find them ... Would you like to add a few judges? That wouldn’t be a bad idea. How about adding another hundred or so? We’ll be able to fill them.”
Republicans have stepped up their litmus test. Trump’s nominees are the most conservative ever. Because the Senate has distorted its filibuster rules, confirmations require only a simple majority. Presidents no longer need consider the views of the minority party in the decision. This empowers the president to select more partisan and ideological nominees.
Trump, because judges serve for life, has chosen younger nominees in order to maximize the time they can sit on the court. Trump’s White House trumpets, “the average age of circuit judges appointed by President Trump is less than 50 years old – a full 10 years younger than ... Obama’s circuit nominees.”
Judiciary Committee Chairman Lindsey Graham has publicly urged Republican-appointed judges eligible for “senior status” to step aside before Election Day. He declared, “This is an historic opportunity. We’ve put over 200 federal judges on the bench. ... So if you’re a circuit judge in your mid-60s ... you can take senior status; now would be a good time to do that if you want to make sure the judiciary is right of center.” There are currently 90 judges appointed by GOP presidents eligible for senior status.
According to The New York Times, Mitch McConnell is talking directly with Republican-appointed judges to urge their retirement. McConnell has been accused of pressuring older judges to retire to make way for younger ones. What will Republicans rush to do before a new president takes office should Trump lose the election?
Roughly a dozen cases weighing the constitutional powers of the Congress and the president are currently before the courts, including the president’s claim of total immunity before the law.
As the judiciary is called upon to referee the balance of powers, will Americans be able to trust courts that become rigidly polarized and driven by partisan pressures?
Richard A. Arenberg is a visiting professor of political science at Brown University. For 34 years, he worked for three U.S. senators. He is co-author of “Defending the Filibuster: The Soul of the Senate” and author of “Congressional Procedure: A Practical Guide to the Legislative Process in the U.S. Congress.”