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Trump's imprint on federal courts could be his enduring legacy

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Washington — "Leave no vacancy behind."

It's the motto that Senate Majority Leader Mitch McConnell, a Republican from Kentucky, said he intends to follow for President Trump's fourth year in office as he continues his charge to confirm a record number of judges to the federal bench.

And it's a motto that McConnell has seldom deviated from over the course of Mr. Trump's first term, leading the president to make significant strides in reshaping the federal judiciary.

Since his inauguration in January 2017, Mr. Trump — with McConnell's assistance — has appointed 193 judges to the federal bench, including 51 to the nation's 13 courts of appeals, where there are a total of 179 authorized judgeships. Even as the nation grapples with the coronavirus pandemic, Mr. Trump has continued to charge ahead with judicial nominees, with the White House announcing last week the president would nominate Mississippi Court of Appeals Judge Cory Wilson to fill a vacancy on the 5th U.S. Circuit Court of Appeals, and U.S. District Judge Justin Walker to the U.S. Court of Appeals for the District of Columbia Circuit.

The president's unrelenting focus on the federal judiciary, his supporters and detractors agree, will be one of Mr. Trump's enduring legacies.

"What you've got is not just a force of numbers, not just people who are young and are going to be around for a long time, but people who are really driven philosophically and really care about those traditional legal principles that are so integral to the rule of law," said Leonard Leo, an outside adviser to the White House on judicial selection. 

Tens of thousands of cases wind their way through the federal court system annually, but fewer than 100 will be heard by the U.S. Supreme Court, meaning that for the vast majority of legal battles, the courts of appeals are the last stop. As a result, the judges Mr. Trump names to the federal bench have the opportunity to leave their stamp on the law for years to come.

Today, one in four judges on the courts of appeals were appointed by Mr. Trump and their average age is less than 50, the White House boasts, ensuring they will serve for at least a generation. They are also largely white and male, sparking criticism about a lack of diversity. Of the 51 judges confirmed to the courts of appeals, 11 are women.

"People from different cultures and races and nationalities and genders see life through different lenses, and to create a judiciary that is overwhelmingly white and male will one, deny the richness of a full discussion that can be brought to bear in deciding cases, but also undermine confidence that they will get a fair shake in the courts," Nan Aron, president of Alliance for Justice, a progressive judicial organization, said.

Still, the president's backers point to judges like Amul Thapar of the 6th Circuit, of South Asian descent, Patrick Bumatay of the 9th Circuit, who is openly gay, and Kenneth Lee of the 9th Circuit, who is Asian, as proof of the diversity among the ranks, as well as Amy Coney Barrett of the 7th Circuit, Allison Eid of the 10th Circuit and Britt Grant of the 11th Circuit to dispel the idea Mr. Trump favors white men.

Beyond the sheer volume of judicial picks that demonstrates Mr. Trump's success in remaking the federal bench, the president has also flipped three courts of appeals — the 2nd, 3rd and 11th Circuits — from a majority of judges appointed by Democrats to a majority of judges appointed by Republicans.

Mr. Trump has also brought the 9th Circuit, long considered a liberal stronghold, closer to parity. When he first took office, there were seven judges tapped by Republican presidents and 18 by Democratic presidents. Today, after naming 10 judges to the San Francisco-based court and filling all its vacancies, Mr. Trump has narrowed that gap to 13 Republican-appointed judges and 16 Democrat-appointed judges.

"When you flip these circuits it makes it more likely that there are more Republican-appointed judges on these three-judge panels, and when these courts go en banc, which is all active federal court judges sitting together, they can overrule a panel and set circuit precedent," said Mike Davis, former chief counsel for nominations to Senate Judiciary Committee Chairman Chuck Grassley.

Critics of Mr. Trump's judicial picks describe the impact of his appointments in stark terms: American lives will be harmed because of who the president has named to the federal bench, and protections for workers, consumers and the environment will be gutted.

"It'll be detrimental," said Daniel Goldberg, legal director of the Alliance for Justice. "What Trump is doing will be detrimental to millions of people."

Cited as evidence that Mr. Trump's judges will dismantle progressive policies is a December ruling from a divided three-judge panel on the 5th U.S. Circuit Court of Appeals in a challenge to the Affordable Care Act.

Judge Kurt Engelhardt, appointed by Mr. Trump to the New Orleans-based court in 2018, joined Judge Jennifer Elrod in finding the Obama-era health care law's individual mandate unconstitutional. The court, however, left unanswered the crucial question of whether the rest of the Obama-era health care law, which provided protections for people with pre-existing conditions, can stand without the mandate.

"Millions of people's lives are literally at stake, lives and health are literally at stake with Trump judges," Goldberg said.

The Supreme Court announced in March that it would take up the case, though it's not likely to hear arguments until its next term, which begins in October.

Davis pushed back on the notion that the judges appointed by Mr. Trump will rule based on their policy preferences.

"A judge's job is to find and apply the law as it's written and understood by the public at the time of its enactment," he said. "It's not their job to pick winners and losers. It's not their job to legislate from the bench. It's not their job to set policy. A judge's job is to follow the law. If the law commands a liberal result, there should be a liberal result. If the law commands a conservative result, there should be a conservative result."

Groups that have been vocal in opposing Mr. Trump's judicial appointments say their past writings, clients and rulings provide a window into how they will rule on specific issues when on the bench. 

"It's this idea that they have these litmus tests, and you have to pass every single one," Chris Kang, chief counsel at Demand Justice, said of Republicans, adding that the judges are "much more politically active or ideologically active" as a result.

But Leo scoffed at the suggestion it's easy to predict how a Trump judicial appointee will decide a case based solely on the issues raised and ideology.

"When we talk about ideology and we talk about textualism and originalism, it doesn't guarantee results," he said. "But what it does for a lawyer and his client is it provides them greater assurances that they're going to have a fair shake. They're going to be able to make their case, and it's going to be viewed objectively by the judges, and those judges are not going to be making more politically oriented decisions."

One example Leo cited is a group of cases involving LGBT rights currently before the Supreme Court, to which Mr. Trump has appointed two justices, cementing its 5-4 conservative majority.

The disputes raise the question of whether Title VII of the Civil Rights Act, which prohibits workplace discrimination on the basis of sex, extends to LGBT people.

During the arguments in October, court watchers paid attention to Justice Neil Gorsuch, who ascribes to the judicial philosophy of originalism and textualism. This is the view that the Constitution and statutes should be interpreted in accordance with their original, public meaning. Gorsuch is considered a likely swing vote in the case, in which plaintiffs argue that discrimination based on gender identity or sexual orientation is the same as discrimination on the basis of sex. The Trump administration, however, argues it's the job of Congress to clarify the law. Gorsuch told a lawyer with the ACLU during oral arguments, "I'm with you on the text." But, he also seemed to suggest that it was not a matter for the high court to decide. A decision is expected by the end of June. 

"The fact of the matter is that's a great example of how textualists and originalists don't guarantee particular results," Leo said, although he later clarified that he believes applying Title VII to LGBT issues would be a flawed application of textualism and originalism.

While much attention is paid to instances where Mr. Trump's appellate judges are in the majority, dissenting opinions are also of importance, especially on courts such as the 9th Circuit and U.S. Court of Appeals for the District of Columbia Circuit, where the president's judicial picks are less likely to be in the majority.

"They're a roadmap not just for the Supreme Court, which ultimately President Trump thinks is beholden to him, but also these circuit courts in and of themselves, especially as you look at the circuits Trump has flipped over the last few years," said Kang, who helped oversee judicial selection for President Obama. "There's still an opportunity for the court to go en banc. It's signaling to them as well."

Leo agreed that dissents "historically provide the Supreme Court with a signal as to whether they should take a case" and said there is typically at least one judge on each of the 13 appellate courts whose dissenting opinions are closely watched by the Supreme Court. 

One such opinion from a Trump-appointed judge that garnered significant attention was an opinion from Judge Neomi Rao of the D.C. Circuit, who Mr. Trump selected to replace Justice Brett Kavanaugh.

Rao dissented from a 2-1 ruling against Mr. Trump in October that found his longtime accounting firm, Mazars USA, has to comply with a congressional subpoena for eight years of his financial records. The D.C. Circuit, Rao said, should not uphold the subpoena from the House Oversight and Reform Committee because its investigation into Mr. Trump exceeds Congress's legislative power.

The Supreme Court was scheduled to hear arguments in the legal battle, as well as two others involving Mr. Trump's efforts to shield his financial records, March 31. But oral arguments were postponed due to the coronavirus outbreak, which has upended life in the U.S. It's unclear when arguments will be held.

Rao also dissented in a case involving the House Judiciary Committee's efforts to obtain secret grand jury materials from special counsel Robert Mueller's investigation into Russian meddling in the 2016 election. In her dissenting opinion, Rao wrote the Democrat-panel panel did not have legal standing to bring the case and said the lower court's opinion in favor of the committee should be thrown out.

Aided by the Republican-controlled Senate, Mr. Trump prioritized filling vacancies on the appellate courts during his first three years in office. But his efforts are likely to slow this year, as he has already selected Wilson for the open seat on the 5th Circuit, the only current vacancy on the federal courts of appeals. Judge Thomas Griffith of the D.C. Circuit is set to retire in September, and Walker was nominated to replace him.

But if Mr. Trump wins a second term, his backers are optimistic the transformation of the federal judiciary will continue, holding true to McConnell's "leave no vacancy behind" mantra. Leo predicted at at the end of eight years, more than half of the judges on the federal bench will have been put there by Mr. Trump.

"You're looking at a transformation shift that will probably last for at least a couple generations," he said.

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