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Neil Gorsuch recites the oath of office April 10 to become an associate justice on the U.S. Supreme Court. President Donald Trump is shown in the background. (Bloomberg News photo)
Neil Gorsuch recites the oath of office April 10 to become an associate justice on the U.S. Supreme Court. President Donald Trump is shown in the background. (Bloomberg News photo)

Trump prefers insiders for federal judgeships

By Ramesh Ponnuru
Bloomberg View

When Donald Trump told conservatives last year that they had to vote for him to get the kind of federal judges they wanted, I doubted him. I wrote in Bloomberg View that Trump could not be trusted to fight the Democrats for a cause in which he had never before shown the slightest interest.

As president, though, Trump has delivered. He nominated Neil Gorsuch to the Supreme Court, to ecstatic reviews from the right, and the Senate confirmed him.

With less fanfare, Trump has also nominated a slew of conservative intellectual heavyweights to the appeals courts. Charlie Savage reports in the New York Times that “Trump has already appointed eight appellate judges, the most this early in a presidency since Richard M. Nixon.” Getting solid judges confirmed to the appeals courts remains one of his top selling points for conservatives, as it was in 2016.

More than a fifth of voters told exit pollsters a year ago that nominations to the Supreme Court were “the most important factor” in their decision, and they went 56 percent to 41 percent for Trump over Hillary Clinton. Trump has said more than once that the issue contributed to his victory. That understanding has helped to motivate his administration in following through on his promise. So, no doubt, has the widespread praise Gorsuch has received.

Trump’s relative lack of interest in legal issues, meanwhile, seems to have worked in favor of his promise. He has let conservatives who do care about these issues select potential nominees.

This isn’t simply a matter of outsourcing the job to the Federalist Society, as observers often put it. The broad network of politically active conservative lawyers centers on that organization but extends beyond it, and White House lawyers broadly share its perspective on the law. This network has spent decades perfecting the art of getting qualified conservative judges on the bench. (It is setting a lower bar for the district courts, unsurprisingly, which are getting a lower caliber of nominee.)

If that sounds like an “establishment,” it should — a “Republican establishment,” no less. The network is built on relationships among people who are, to various degrees, insiders. Many of them are veterans of past administrations. Many of them have elite academic credentials. Its members would have been working together, inside and outside a Republican administration, to staff the federal bench if any of Trump’s primary rivals had made it to the White House instead.

Trump’s ability to change the federal judiciary has also depended on the work of Senate Majority Leader Mitch McConnell. Trump has had a tempestuous relationship with McConnell, and fans of the president frequently despise the senator. But it was McConnell who kept President Barack Obama from filling Justice Antonin Scalia’s seat on the Supreme Court, elevating the importance of that issue during the election and giving Trump an opportunity to nominate Gorsuch. McConnell has also made confirming appellate nominees a priority.

Putting conservatives on the federal courts has been Trump’s major success since the election. But he has not achieved it by “draining the swamp,” or shaking up the system, or following his gut once he took office. He has achieved it by collaborating with the Republican Senate leadership and deferring to experts in the field.

Ramesh Ponnuru is a Bloomberg View columnist. He is a senior editor at National Review, visiting fellow at the American Enterprise Institute and contributor to CBS News. This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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