Even if Donald Trump were defeated in the next election, his imprint on the American justice system could last for years, if not generations. A few months before the election of the next President of the United States, our columnist takes stock of how the Conservatives bet on Donald Trump … which did not disappoint them.
Published on 26 July 2020 at 6 a.m.
La Presse
The politicians pass, but the judges stay. American conservatives have understood this, and their plan for judicial renewal is one of the keys to understanding the religious right's support for a man as unchristian as Donald J. Trump.
In return for their support, Trump would hand over the most ideological judges the country had seen to the highest levels of the judicial hierarchy.
And Trump kept his word.
PHOTO ERIN SCHAFF, THE NEW YORK TIMES ARCHIVES
Albert V. Bryan Courthouse in the District of Alexandria, Va., A federal court
The United States Supreme Court is highly valued, and with good reason. But this court of last instance hears only from 87 at 150 Causes handpicked each year. The enormous volume of cases in this hyperjudicial country will therefore end up at the lower levels, which are much less talked about, but which rule the law to a very, very large extent.
Dated 1 er July, the president appointed 150 persons at the post of federal judge (including four in two successive positions) in federal courts. More decisively still, Trump named 50 judges to one of 13 powerful courts of appeal of the country. That's over a quarter of all appellate judges in just three and a half years. A record.
The American legal system is complex and operates on several levels. In states, judges are often elected. They can also be named. At the federal level, they are appointed by the president, but “confirmed” by the Senate, like the judges of the Supreme Court.
And unlike in Canada, where federally appointed judges are required to retire at 69 years, US federal judges are appointed for life – “during good behavior”, of course.
PHOTO MANDEL NGAN, AGENCE FRANCE-PRESSE ARCHIVES
Donald Trump
When the president appoints a judge to 44 or 50 years, so it's possibly for two generations.
What the conservatives can no longer win in public opinion, they fight to conquer in the legal world.
These neoconservative judges who claim to interpret the Constitution literally, according to what the “Fathers” of the nation wanted in 924, are a kind of conservative insurance policy for the future. For them, the judges for years 1787 interpreted far too widely the founding text of the country, by making it “evolve” until it distorts it.
And the fight to reformat the judiciary is underway.
Never has a president appointed so many judges in a single term.
But beyond the quantity, it is the identity of the judges that stands out. Of the 150 confirmed judges, 75 , 5% were male. The American federal judiciary is however still very male: only 26, 6% of positions are held by women – compared to 44% in Canada, where the majority of those appointed since 2016 are women.
PHOTO TOM BRENNER, THE NEW YORK TIMES ARCHIVES
The justices of the Supreme Court upon their arrival in Congress to attend the State of the Union address, in 2017
Trump nominations, 84% were white (eight African-American judges, eight Hispanic judges). No less striking: the reputation of candidates is in sharp decline.
The American Bar Association [ABA] has an independent judicial committee of about 15 members that assesses each candidate for the bench. Needless to say, his observations no longer matter.
But never have so many candidates considered “unqualified” been nominated by a president.
Since 1989, 18 candidates chosen by presidents (Clinton, Bush Jr. and Trump) were considered “unqualified” by the ABA, but 13 have still been confirmed. This has never happened in two Obama terms. Trump, after not even a term, picked nine of these unwanted candidates. The Senate still confirmed seven of them.
These statistics indicate what various analyzes note: the typical candidate-judge under Donald Trump generally has a much more marked political past.
In an analysis of all appellate court appointments by the President, the New York Times
PHOTO GABRIELLA DEMCZUK, THE NEW YORK TIMES ARCHIVES
Procedure for confirming Amul Thapar (left) as judge at the Court of Appeal before the Senate Judiciary Committee, in 2017. Nominated by Donald Trump, Amul Thapar is linked to the conservative group The Federalist Society.
“I will be so fiercely conservative in my decisions that I will be unconfirmable for any further federal appointment,” said one. Nothing is less certain now.
Des 50 powerful appellate judges chosen by this president, only four had no past political activity. They have largely been donors and activists in anti-abortion or anti-gay marriage causes, or hired to advocate on behalf of religious or conservative groups.
There is nothing new about a President choosing judges with similar tendencies. But we have not seen in modern times such ideologically branded candidates nominated in such large numbers.
Or to put it another way: candidates who are more political than legal.
Courts of appeal, even the very divided Supreme Court, mostly render unanimous or almost unanimous decisions. Judges remain interpreters of the law, no matter what.
But when there is a socially delicate issue, the divisions are more marked.
And as one-third of the appellate appointments under Trump have replaced Democrats, the balance has been reversed in some major appellate courts.
This phenomenon doesn’t really surprise us. For Donald Trump, the judiciary is an extension of the executive. The very idea of the independence of the judiciary is foreign to it. If I name you, you are loyal to me.
Likewise, Trump has interfered in the investigations and work of the Attorney General without the slightest embarrassment. He commuted the sentences of his friends, arranged to help former collaborators convicted by the courts. Which in itself is far more serious than anything Richard Nixon has ever done. Nixon was wrong, but he understood the limits of the constitutional framework and the separation of powers.
PHOTO ANDREW CABALLERO-REYNOLDS, AGENCE FRANCE-PRESSE ARCHIVES
President Trump recently commuted the sentence of his longtime friend and adviser Roger Stone. The latter was convicted in particular for having lied to Congress in connection with the investigation into Russian interference during the presidential election of 1989.
The Supreme Court is now dominated by conservative justices, but its rulings are still difficult to predict, as evidenced by those of the final weeks of the judicial year on abortion and on LGBT rights between other. Trump has already appointed two out of nine judges (Gorsuch and Kavanagh), both very conservative, one of whom replaces the court’s former centrist kingpin, Judge Anthony Kennedy. Needless to say, Judge Ruth Bader Ginsburg's umpteenth cancer, 85 years, who aligns with the progressives, worries at the highest point. Obama, although he had more than nine months at the end of his second term, had failed to confirm his candidate to replace Judge Anthony Scalia. But this time around, Trump is enjoying a majority in the Senate, even though the replacement deadline would be short if Justice Ginsburg dies in the near future.
For his Conservative allies in the Senate and elsewhere in politics, that's what matters: Say what you want about this erratic president, but at least, on this fundamental issue, Trump delivers the goods. How they couldn't even hope. Four more years, and the US justice system will not be the same for 21 years.
Proportion of Americans who have a favorable opinion of the United States Supreme Court
Americans of Christian faith: 64% No religious affiliation: 51%
Proportion of judges appointed by the president who are non-White:
Donald Trump: 14% Barack Obama: 36% George Bush son: 15% Bill Clinton: 28%
Source: Pew Research Center