Trump transformed the federal judiciary. He could push the courts further right in a second term
CNN
By Andrew Seger and Phil Mattingly, CNN
(CNN) — Supporters and opponents of former President Donald Trump agree that the cornerstone achievement of his first term will continue shaping the American legal and political landscape for decades.
“I totally transformed the federal judiciary,” Trump boasted at a summit hosted by the right-wing Moms for Liberty group last summer. “Many presidents never get the opportunity to appoint a Supreme Court justice. I had three, and they’re gold.”
That claim, the numbers show, is not hyperbole. As president, Trump named 234 judicial nominees to seats on the most critical benches across the country, including 54 who reshaped the ideological makeup of federal appeals courts and three who drove a generational shift in the highest court in the land.
But as Trump drives toward a potential second term, one thing is clear: He’s just getting started. It’s a reality that thrills supporters – and strikes fear among even a few right-leaning legal scholars.
“I fear that in a second term, you might see a reelected President Trump imposing more of a political test on prospective judges and looking for people who will be more loyal to him personally or to the Republican Party in general,” Gregg Nunziata, the executive director of the conservative Society for the Rule of Law and a former counsel to the Senate Judiciary Committee, told CNN.
It’s a fear President Joe Biden said was a top concern heading into November.
“It is one of the scariest parts of it,” he said at a star-studded Los Angeles fundraiser last month in response to a question about Trump’s potential court nominees. “Look, the Supreme Court has never been as out of kilter as it is today.”
Trump campaign officials and allies have made clear that victory in November, paired with what they view as an increasingly likely Republican flip of the Senate, would set the stage for a renewed – and far more Trumpian – stamp on the courts.
“I will once again appoint rock solid conservative judges to do what they have to do in the mold of Justices Antonin Scalia, Samuel Alito, a great gentleman, and another great gentleman, Clarence Thomas,” Trump promised a cheering crowd at the Family Research Council’s Pray Vote Stand Summit in September. It’s a promise he made in 2016, and again in 2020, and more than delivered on.
Alito and Thomas aren’t just important to Trump as models for future judicial selections. Many allies of the former president see it as likely that one or both could step aside due to age – and grant Trump the opportunity to cement the Supreme Court’s conservative supermajority for a generation.
Trump, who relied heavily on long-standing Republican legal philosophy and counsel from the conservative Federalist Society during his first term, has made it clear he would push sharply right in a second.
“I think from both the positions his own lawyers have taken in litigation, what the administration sought to do previously and the extreme proposals in Project 2025, it is clear that there is an effort in this country by the far right to operate in a post-constitutional paradigm,” Skye Perryman, the president of Democracy Forward, told CNN. (Project 2025 is the policy playbook crafted by the conservative Heritage Foundation for a potential second Trump term.)
‘We like people in their 30s’
Trump more than delivered on his 2016 campaign promises to name conservatives to the federal judiciary, rivaling the confirmed nominees of presidents who held office for twice as long as he did.
But legal scholars note it’s not only the number of Trump nominees that has had such a dramatic impact on the judiciary. It’s who he has nominated that will resonate for decades.
“We like people in their 30s so they’re there for 50 years or 40 years,” Trump told the crowd at the National Rifle Association’s annual meeting in Dallas in May.
Trump’s three Supreme Court picks – Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – while not in their 30s, were all under 55 when he nominated them to the bench. Younger than the average nominee, each could have decades to shape rulings and policy across the country.
But the key common denominator among all of Trump’s picks was not their age, but their conservative credentials.
“Will you commit to voters tonight that religious liberty will be an absolute litmus test for anyone you appoint?” conservative talk radio host Hugh Hewitt asked Trump at a Republican primary debate in 2016. “Not just to the Supreme Court, but to all courts?”
“Yes, I would,” Trump replied, without hesitation.
That promise, coming shortly after Scalia’s February 2016 death, helped solidify support for Trump’s candidacy from skeptical Republicans.
Once in the White House, Trump relied heavily on the counsel of advisers and outside groups to fill open seats with the help of Senate Majority Leader Mitch McConnell, who was eager to cement conservative domination over the nation’s courts.
“You know what my top priority is. I’ve made it very clear. It’s the judiciary,” McConnell told reporters halfway through Trump’s term. “We intend to keep confirming as many as we possibly can for as long as we’re in a position to do it.”
Working with the Republican-controlled Senate, Trump solidified a 6-3 conservative majority on the Supreme Court. The result has been dramatic – even with Trump no longer in the Oval Office. Roe v. Wade has been overturned. The EPA and other federal agencies have been stripped of regulatory power. Affirmative action in college admissions has ended. And, in a case deeply personal to Trump himself, a court decision earlier this month granted the president near-total immunity while in office.
Trump also helped conservatives flip three of the nation’s 13 appeals courts, which play a significant legal role in shaping policy across the country. And one of Trump’s district court picks – Judge Aileen Cannon – is now responsible for overseeing his classified documents case in Florida.
Pushing the envelope
Trump allies and detractors alike point to a less understood, but clear, shift in the makeup of Trump’s nominations over the course of his first term: a shift away from nominees backed by the powerful conservative legal establishment during his first two years and toward lawyers who embraced more expansive – and at times legally tenuous – views of executive power.
“Some of Trump’s judicial appointees really push the envelope in an ideological way,” Donald B. Ayer, a former deputy attorney general under President George H.W. Bush, told CNN. “They do things because that’s the result they want to achieve, and that’s just not how the legal system is supposed to work. It’s not supposed to be primarily driven to achieve a given outcome.”
It’s a legal philosophy that has been aggressively and financially built up in the years Trump has been out office through a constellation of outside groups populated by former Trump officials and lawyers. Much as former officials have created an outside policy infrastructure around Trump’s campaign, there has been a corresponding effort on the legal front.
The groups have repeatedly sued the Biden administration and pressed for investigations into the administration’s actions. But they’ve also served as an unofficial bulwark in their defense of Trump’s own legal travails.
“Look, when this election is over, based on what they’ve done, I would have every right to go after them,” Trump said of his political opponents in an interview with Fox News’ Sean Hannity last month.
That intent for vengeance could set the bar for nominations and administration lawyers alike in a second Trump term.
“I don’t say that we should be the mafia,” Will Chamberlain, senior counsel at the conservative Article III Project and a former adviser to Florida Gov. Ron DeSantis, told this week’s National Conservatism Conference in Washington. “But as a political party, if we aren’t willing to dish anything out, then we can just expect to keep taking it.”
Some in Trump’s circle have even suggested expanding the fight further – into trying to remove sitting judges, according to John Eastman, an architect of Trump’s efforts to overturn the 2020 election who also spoke at the conservative DC gathering.
“We’ve got to start impeaching these judges for acting in such an unbelievably partisan way from the bench,” Eastman said.
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