Next week, on September 4, the Senate Judiciary Committee will start confirmation hearings for the appointment of Judge Brett Kavanaugh to replace U.S. Supreme Court Justice Anthony Kennedy.
If confirmed by the Senate, he would be President Donald Trump’s second appointment to the U.S. Supreme Court, the so-called “court of last resort.” Such a feat for any president so early in the first term would likely be a legacy-defining moment.
Yet, Mr. Trump’s judicial legacy should also include how he is remaking the U.S. Circuit Court of Appeals at a historic rate. While these appointments are not as high profile, they have a major impact on the rule of law and the Constitution.
The Court of Appeals, which consists of 13 appellate courts throughout the country and 179 judges, reexamines cases from district courts. Judges on the circuit ensure the law was applied accurately and that the district judges followed proper procedure. Their decisions become binding precedent for their multi-state jurisdiction. Because the U.S. Supreme Court takes only roughly one percent of cases filed in that Court, the Court of Appeals has the final say in the other 99 percent of cases– which totals thousands each year.
When Mr. Trump took office, he inherited a Court of Appeals with roughly 10 percent its seats vacant. He went to work almost immediately with the U.S. Senate, which has the constitutional role to give “advice and consent” on appointments.
Mr. Trump has had the good fortune of working with a Republican-controlled Senate and Majority Leader Mitch McConnell who famously declared: “If I have a choice between taking up a particular bill or taking up a circuit court judge, I take up a circuit court judge because I think it makes the longest lasting contribution.”
In Washington, D.C., politicians’ words are often nothing more than empty promises. But after only a year and a half into his presidency, Mr. Trump is not only appointing judicial conservatives to the lower courts, he is doing so at a record pace.
This month, the Senate confirmed two more of Trump’s nominees, A. Marvin Quattlebaum Jr. and Julius Ness Richardson to the 4th Circuit Court of Appeals, consisting of Maryland, North Carolina, South Carolina, Virginia, and West Virginia.
With these appointments, Trump has made a total of 26 appointments to the appellate courts since taking office. This is historic. No other president in the history of the United States has appointed so many circuit court judges at this point of their presidency. In comparison, during that time frame President Barack Obama, who also benefited from a politically aligned Senate, only confirmed 16 circuit court appointments.
Mr. Trump’s achievements are all the more incredible given how Senate Minority Leader Chuck Schumer has tried his best to slow down the judicial appointment process, insisting on a full 30 hours of floor debate on for all nominees, even for ones who are less controversial.
Mr. Trump’s appointments have not just been about quantity. The quality of his appointments has been impeccable. Mr. Trump’s appointments tend to have a judicial philosophy that is centered on their fidelity to the rule of law and appreciation to the text of the Constitution.
As explained by Leonard Leo, on leave from the Federalist Society, the president is appointing judges “who have a conservative legal philosophy that makes them inclined to limit government power.” Because the average age of Mr. Trump’s circuit court nominees last year was 49, with lifetime appointment, this transformation will be enshrined for generations to come.
Besides Majority Leader McConnell, credit for this historic achievement should be shared with Senate Judiciary Chairman Chuck Grassley, White House Counsel Don McGahn, and Mr. Leo.
To fully appreciate Mr. Trump’s success, one must also understand what he prevented. During the 2016 election, liberal journalist Matthew Yglesias predicted that a President Hillary Clinton would appoint “judges who’ll be systematically more sympathetic to criminal defendants, labor and environmental plaintiffs, and government regulators.” This would, he wrote, turn “the federal judiciary back into a powerful prop of progressive governance.”
At the time of the 2016 election, the future ideological balance of some circuit courts, like the Seventh Circuit Court of Appeals that covers Illinois, Indiana, and Wisconsin, was up for grabs and therefore dependent on the presidential victor. The Seventh Circuit featured six active Republican-appointed judges – some even straying away from textualism or originalism – and three active Democrat-appointed judges. Two seats were vacant.
But with Mr. Trump’s appointments, the balance of the Seventh Circuit has swung to the right and could become one of the most judicially conservative circuit courts in the country.
The judges Mr. Trump has chosen for the Seventh Circuit include Amy Coney Barrett and Michael Brennan, two young and highly-qualified judicial conservatives who understand that the proper role of the judge is to interpret the law as written, not to scramble for that judge’s personal conception of a “just” result. These new judges join Judge Diane Sykes, a staple of that court since 2004, whose admirable approach to judging landed her on Mr. Trump’s list of potential nominees to the Supreme Court.
The makeup of this circuit has major implications and illustrates the state of non-Supreme Court appointments. In the past few years, for example, the Seventh Circuit decided whether Indiana’s selective abortion ban was unconstitutional, whether to uphold Wisconsin’s right-to-work law against union challenge, and whether a transgender student denied access to a bathroom could assert a federal claim for sex discrimination.
Mr. Trump, however, does not seem content with simply breaking records on circuit court appointments. He wants to smash them. With 12 more vacancies on the U.S. Court of Appeals – and five nominees pending – there’s a lot more “winning” to be done before the end of the year.
CJ Szafir is the Executive Vice President at the Wisconsin Institute for Law & Liberty.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.