Think about it: The issues that voters do care most about in this election year — immigration, reproductive rights, the economy and government regulation, gun control — increasingly are decided in federal courts reshaped by Donald Trump, including the Supreme Court, because of the paralyzing dysfunction in Congress.
Opinion Columnist
Jackie Calmes
Jackie Calmes brings a critical eye to the national political scene. She has decades of experience covering the White House and Congress.
Add to those perennial issues the novel one of 2024: Trump’s legal accountability. Here, the judiciary’s impact couldn’t be more clear. Foot-dragging — by the Supreme Court, where three Trump appointees sit, and at the Florida district court where a Trump-appointed judge presides — has all but assured that voters won’t get criminal verdicts before election day on the former president’s efforts to overturn his 2020 defeat and to squirrel away top-secret documents.
We’ve learned the hard way: It matters whether Trump or President Biden is picking federal judges, just as it matters which party controls the Senate and has the power to confirm them.
Only since the 2022 Dobbs decision overturning a half-century of abortion rights have Democrats begun to wise up to what Republicans have long known: With executive and legislative power, your party can put its stamp on the unelected third branch of government, the judiciary, and that legacy can long outlast the politicians. As Trump lackey Sen. Lindsey Graham of South Carolina recently said of 2024, “One of the big issues on the ballot is trying to have a more conservative judiciary.”
Be forewarned, Democrats. Flip the script — mobilize your voters around this issue.
Here are the stakes: If Biden wins, he can continue the unfinished work of trying to offset the right-wing tilt (and white male dominance) that Trump gave to the courts by naming more judges in a single term than any president other than Jimmy Carter. Biden’s effort could well be slowed if, as widely expected, Republicans take control of the Senate and gum up the confirmation works.
But better slow action in the Senate on Biden appointees than a return, if Trump wins, to a fast track for extreme right-wingers. Such as Trump-appointee Aileen Cannon, the novice Florida district judge (mis)handling the former president’s trial involving classified material. Or Matthew Kacsmaryk, the Texas district judge and culture warrior who last year sought to outlaw mifepristone, one of two drugs used for the medication abortions that account for more than half of all abortions in the country. He filled his opinion with the jargon of antiabortion activists, writing at one point that mifepristone, which is used just up to 10 weeks’ pregnancy, “ultimately starves the unborn human until death.” The Supreme Court will hear that case March 26.
Another consideration for voters: While a reelected Biden likely wouldn’t be able to alter the imbalance at a Supreme Court between six archconservatives and three liberals, he could prevent it from getting even worse.
None of the justices are expected to retire soon. However, the two oldest (and most conservative), Clarence Thomas and Samuel A. Alito Jr., are in their mid-70s and could opt to step aside if Trump wins, court watchers speculate, so that he could replace them with like-minded jurists young enough to serve for decades. (In normal times, we might already be rid of Thomas through impeachment or resignation, given his well-documented ethical lapses and his refusal to recuse himself from Jan. 6 cases despite his wife’s complicity in efforts to overturn Biden’s election. But these aren’t normal times.)
When Trump reluctantly left the White House, his judicial picks made up one-third of the Supreme Court, nearly one-third of the 13 appeals courts and more than a quarter of the 94 district courts. Because relative youth and proven Republican bona fides were the job criteria set by Trump and the trio to whom he outsourced his court-packing — Senate Republican leader Mitch McConnell, then-White House Counsel Don McGahn and former Federalist Society leader Leonard Leo — Trump judges likely will be prominent on the federal bench well past midcentury.
“Topping Trump seems impossible” was the headline last fall on an analysis of Biden’s judicial appointments by Russell Wheeler, of the Brookings Institution, who tracks the courts. In an update in January, however, Wheeler said that although Biden probably won’t top Trump’s one-term total for judges on the appeals courts, he could match him on district court judges.
Should Biden fall short, it won’t be for lack of trying. More than Democratic predecessors Bill Clinton and Barack Obama, he has made judicial nominations a priority in the wake of Team Trump’s single-minded courts makeover. Better late than never?
Biden was, after all, a leader on the Senate Judiciary Committee for years; he knows his stuff. (Except we do have him to thank for Thomas’ confirmation three decades ago.) And Senate Democrats, with their one-vote majority, have helped. Together, they set a record for confirmations in a president’s first year in office, though the pace was only “so-so,” as Wheeler put it, by the end of last year.
One problem is that Biden didn’t inherit nearly as many vacancies as Trump did. McConnell had thwarted confirmation of many nominees in Obama’s final year — most famously, Merrick Garland for the Supreme Court — so Trump was able to fill the seats. Then in Trump’s final year, McConnell nearly made good on a vow to “leave no vacancy behind”; he even rammed 14 nominees to confirmation after Trump lost the 2020 election, the first time a defeated president’s nominees were confirmed since 1897.
Now Democrats must copy McConnell’s zeal. Fifty-seven judgeships are open, and Biden has picked nominees for just a third of them. For one thing, he and Senate leaders are being too deferential to Republicans about whom to nominate for red-state vacancies. Just get ‘em all filled before election day, lest Trump and a Republican-run Senate once again inherit a bonanza of seats.
If the republic is lucky, voters will give Biden another four years to keep at it. And that’s more likely if enough of them remember: The bench is on the ballot too.