The Trump administration has not put much focus into filling executive-branch openings. They’re not making the same mistake with the judiciary. The New York Times’ Adam Liptak reports that the White House will announce ten nominations to fill openings in appellate and district courts, and that the administration plans to make judiciary nominations a “near monthly” event:
Having filled a Supreme Court vacancy, President Trump is turning his attention to the more than 120 openings on the lower federal courts. On Monday, he will announce a slate of 10 nominees to those courts, a senior White House official said, the first in what could be near monthly waves of nominations.
The White House counsel, Donald F. McGahn II, said the nominations were a vindication of a commitment Mr. Trump made during the campaign “to appoint strong and principled jurists to the federal bench who will enforce the Constitution’s limits on federal power and protect the liberty of all Americans.”
Liptak reports that two of the nominations come from his campaign list of potential Supreme Court picks, both of whom currently serve on state supreme courts. Politico summarizes the appellate nominee list:
Two of the nominees who will be unveiled Monday were on the list of Trump’s potential Supreme Court justices and will likely come under scrutiny by Democrats because of that inclusion: Michigan Supreme Court Justice Joan Larsen, who will be nominated to the 6th Circuit Court of Appeals, and Justice David Stras, who sits on the Minnesota Supreme Court and is Trump’s pick to sit on the 8th Circuit.
Trump will name three other nominees to the appellate courts: Amy Coney Barrett to the 7th Circuit, John Bush to the Sixth Circuit and Kevin Newsom to the 11th Circuit. The president also plans to name four federal District Court nominees: Dabney Friedrich in the District of Columbia, Terry Moorer in Alabama, David Nye in Idaho and Scott Palk in Oklahoma, as well as Damien Schiff to the U.S. Court of Federal Claims.
The full slate of nominees is impressive enough, Jonathan Adler writes at the Washington Post, to make Trump critics during the campaign think twice — at least, critics on the right. While two came from the previous SCOTUS list and passed muster during the campaign, Adler notes that the White House has kept up its vetting for the new names on the list:
The nominees make up an impressive list of highly respected jurists, attorneys and legal thinkers. Those of us who doubted Trump would take judicial nominations seriously may have some crow to eat. Especially when one looks at the names to be announced for appellate court vacancies, this is as strong a list of nominees as one could hope for. …
Newsom clerked for Supreme Court Justice David Souter, served as the solicitor general of Alabama and wrote a well-regarded article for the Yale Law Journal, “Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases.”
Barrett clerked for Supreme Court Justice Antonin Scalia, served for six years on the Advisory Committee for the Federal Rules of Appellate Procedure and has an impressive scholarly record.
Bush is an accomplished litigator and president of the Louisville Lawyers’ Chapter of the Federalist Society. He served on the Sixth Circuit’s Advisory Committee on Rules from 2012 to 2015.
One well-known name did not make it onto the list: Justice Don Willett of the Texas Supreme Court, who is also on the SCOTUS list. Adler notes that Willett apparently didn’t have the backing of Gov. Greg Abbott or Sen. John Cornyn, at least not for this first round of assignments. Adler calls this exclusion “a shame,” especially since the Fifth Circuit has two openings, but it might not preclude a later nomination to the appellate panel. Willett has become a popular choice on the right, especially because of the Texas jurist’s engagement on Twitter and unabashed conservative viewpoint.
That is, after all, the point of this early emphasis on judicial nominations — to secure Donald Trump’s right flank. The lack of progress on executive-branch nominations might be plaguing policy enforcement at the moment, but (a) it will get resolved eventually, and (b) the policies that will get implemented won’t necessarily be terribly popular with conservatives. They’ll put up with them, however, as long as Trump fills these judicial openings with conservatives that will reshape the courts after eight years of Barack Obama’s judicial nominees pushing the federal judiciary in the opposite direction. When conservatives are asked what has been the best part of the Trump administration, the answer is almost always the nomination of Neil Gorsuch, and that provided the apex of Trump’s support. He’s planning to keep going back to the well on a regular basis — “near monthly,” as Liptak puts it — to give him more range of motion on other issues.
It’s a smart strategy, made doubly effective by the outrageous outrage it will produce on the left. As Liptak reports, that’s already begun:
But liberal groups expressed alarm at the prospect of a federal bench filled with Mr. Trump’s appointees. “The Trump administration has made clear its intention to benefit from Republican obstructionism and to pack the federal courts with ultraconservatives given a stamp of approval by the Federalist Society,” said Nan Aron, the president of the Alliance for Justice, referring to the conservative legal group. “We’ll be scrutinizing the records of these nominees very carefully.” …
Ms. Aron said Democrats should be wary of Mr. Trump’s nominees. “Given the critical importance of the circuit courts,” she said, “it is incumbent upon the Senate to treat its duty to provide advice and consent very seriously.”
This reads as if it came from a press release dated prior to November 2013. Aron and her group seem to forget that their ally, Harry Reid, made all this possible by changing the precedent under the rules of debate to eliminate filibusters on presidential nominations — explicitly on judicial nominations. Reid’s action allowed Obama to pack the DC Circuit, and now Aron and Democrats suffer from a bad case of sauce for the gander. The Republican majority can and will confirm these candidates easily, and in most cases Democrats won’t bother to make much opposition to them regardless of the hyperventilation from the Alliance for Justice.
Their hyperventilation will, however, keep reminding conservatives of the value of Trump’s win, and the overall balance when Trump inevitably angers them on policy. The federal judiciary was always the biggest prize for the right, and so far, Trump’s making sure that they get tired enough from all the winning that they don’t have the heart to oppose him effectively elsewhere. Whether it works or not might be another question, but having made the judiciary the center of their support for Trump in 2016, it might be tough for conservatives to explain to voters why they’re opposing him on policies such as ObamaCare and big infrastructure spending down the road.