President Trump’s longest-standing legacy will come not from the trenches of his most public-facing efforts to dismantle equality, but instead from the benches. A recent report by the Senate Judiciary Committee’s minority members—including Senators Dianne Feinstein, Patrick Leahy, Mazie Hirono, Cory Booker and Kamala Harris—illustrate the devastating impact of Trump’s influence on the direction of the judiciary.
Due to self-created gridlock, Trump entered the Oval Office with a plethora of judicial vacancies left before him—and Senate Majority Leader Mitch McConnell and his Republican colleagues have been approving his far-right nominees for the seats swiftly. The result will be an obstacle to progress on feminist issues for at least two or three generations—with disastrous consequences for the rights and lives of women, people of color and other marginalized groups.
Trump was given 112 vacancies in judge positions to fill how he saw fit; Barack Obama saw only 53, and during his two terms, Republican senators repeatedly blocked attempts to appoint and approve his nominees.
Most famously, their efforts resulted in the delaying the confirmation of a Supreme Court Justice—leaving Merrick Garland, Obama’s nominee to fill the late Antonin Scalia’s seat, without a hearing, and leaving room for the eventual confirmation of Justice Neil Gorsuch, a Trump nominee. But elsewhere, in 2017 alone, President Trump also successfully seated 12 circuit court judges—the most ever confirmed since the courts were created in 1891.
“Trump won the election, so he gets to nominate who he wants, but that comes with a really big asterisk seeing as how he barely squeaked on with a fairly heavy loss in the popular vote,” Russell Wheeler, a visiting fellow at Brooking’s Institute and the director of Governance Institute, said to Ms. “That normal notion that the President wins the election and then gets to nominate judges, which used to be the prevailing sentiment—you know, nominees were going through a split Senate in 20 to 30 days—those days are long gone.”
It is not only the number of confirmations revealed in the report that is startling. In the context of the practices in the confirmation process, the neglect for precedent and tradition is also stark.
The report shows Trump’s nominees have been confirmed as quickly as possible without a thorough vetting process, including situations that placed several candidates in hearings together and scheduling hearings for nominations before evaluations from the American Bar Association had been received by members. Senate Republicans have also consistently failed to honor the century-old blue slip tradition—a practice created as a result of the constitutional responsibility of Congress to “advice and consent” the President.
The President typically consults home-state senators about appointments; historically, a blue slip from both home-state senators means the process of confirmation can continue. But under the supervision of Senator Chuck Grassley as chairman of the Senate Judiciary Committee, the blue slip tradition has been applied inconsistently.
During both of Obama’s terms, a candidate never received a hearing if they did not have two blue slips from home-state senators, and when Grassley assumed the chairman position in 2015, he did not allow any hearings unless a candidate received two blue slips. However, Grassley reversed this policy in 2017 by allowing candidates to receive a hearing even if they only received one blue slip.
The lack of respect for processes and procedures allows for Republicans to create new practices in regards to court nominations which speak to prioritizing ideological preferences. “What McConnell and Grassley did I think was just outrageous, and it’s just going to contribute further to this degradation of a process that once used to be very ministerial,” Wheeler said. “That’s just gone out the window.”
Additionally, the lack of diversity in Trump’s appointees has shown a clear bias towards white male candidates. In circuit courts, 33 percent of President Obama’s nominees were women and 50 percent were people of color; only 21 percent of Trump’s nominees have been female, and all but 11 percent were white. Forty-eight percent of President Obama’s district court nominees were women and people of color, whereas only 24 percent of Trump’s nominees were female and 92 percent were white.
The majority of court cases do not make it to the Supreme Court—which means that many times, they are decided in the lower courts that Trump has been steadily rearranging without any checks or balances applied by the Senate’s Republican majority. Several of Trump’s nominees have historically supported rolling back the rights of women, LGBTQ individuals and people of color; despite knowing the biases and bigotry of these nominees, multiple judges have been confirmed along party lines and will serve for decades to come. Senator McConnell even told Time that the strategy is intended to put more conservative judges in power.
The appointment of far-right judges who are outside of the mainstream can and will affect the fight for equality for all people—in the immediate future and for decades to come.
Justice Kennedy’s retirement from the Supreme Court has left feminist lawmakers, activists and citizens concerned about the future of their country—and laid bare Trump’s power to shift the direction of the judicial branch. While the fate of the highest court in the nation is at stake, the lower courts must not be seen as insignificant. Each and every seat could be the deciding factor in the fights ahead, and it’s the fight of our lives.
