The Liberal Judiciary is Now Dead. Long Live the Liberal Judiciary.
Donald Trump’s animosity toward judges is a matter of public record. In 2016, after a federal judge in Texas refused to dismiss a lawsuit against him, Trump took to Twitter to suggest that the judge’s Mexican heritage introduced bias into his ruling. In early 2017, after a District Court in Washington blocked his travel ban on visitors from certain countries, Trump tweeted, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned.” After the 9th Circuit upheld the ruling, he called the decision “ridiculous.” And when a federal judge in San Francisco blocked his executive order on “sanctuary cities,” the President declared that, “the San Francisco judge’s erroneous ruling is a gift to the criminal gang and cartel element in our country, empowering the worst kind of human trafficking and sex trafficking, and putting thousands of innocent lives at risk.”
Given his distaste for the federal judiciary, President Trump must relish the massive opportunity that history has handed him: a record number of vacancies on the Federal District Courts and Courts of Appeals, and a Senate eager to confirm his nominees. In addition to filling Antonin Scalia’s Supreme Court seat with Neil Gorsuch and maintaining the conservative majority on the Supreme Court, according to Time Magazine, President Trump has had more nominees —12— confirmed to the Federal Court of Appeals (FCA) in his first year than any other President in history (President Obama, for comparison, had three).
Moreover, the President is far from done. There are currently 145 vacancies across all levels of the federal judiciary—over 16 percent of the total number of seats—and more vacancies are likely to emerge. In late March, Judge Stephen Reinhardt, a liberal legend on the 9th Circuit responsible for the “ridiculous” ruling on the travel ban, passed away and gave the President an opportunity to reshape the most liberal Court of Appeals in the country. This is likely not to be the last appointment of a Trump nominee to the Supreme Court: political blog FiveThirtyEight estimates that given the current ages of the Justices, there is a 67 percent chance that one or more will leave the bench before the end of Trump’s first term. The magnitude of this opportunity is not lost on the President, who has called it “a gift from God.”
At the end of Barack Obama’s presidential term, Democratic appointees held wide majorities over Republican appointees on both the Federal District and Appeals Courts. The political impact of this liberal judiciary has been clear throughout the first 15 months of the Trump presidency: federal judges have repeatedly struck down or stayed major policy actions from the White House, including the travel ban, an executive order regarding sanctuary cities, multiple regulatory rollbacks, and the end of the DACA immigration program. Most or all of the judges in those rulings were Democratic appointees.
According to Russell Wheeler of the Brookings Institution, if the President manages to fill the pending vacancies, the majorities on the District Courts and Circuit Courts will flip from Democratic to Republican. It is difficult to overstate the political implications of this change. Policy rulings against the Trump administration are less likely to occur at the District Court level, and more likely to be overturned by the Courts of Appeals. In the long run, a more conservative federal judiciary could also serve as a check on future Democratic administrations, blocking and staying policy initiatives just as liberal courts have done in the Trump presidency. This new judiciary would also be likely to produce traditionalist rulings on hotly contested legal issues, ranging from abortion, gun rights.
An example of the latter is a lawsuit currently pending in the District Court for the District of Massachusetts that accuses Harvard University of discriminating against Asian Americans through its use of affirmative action in admissions. Should the court rule against Harvard, the appeal would be heard by three judges from the First Circuit Court of Appeals, which currently has a Democratic majority. However, by the time such an appeal reaches the First Circuit, it is possible that the Circuit would be split 50-50 along Democratic-Republican lines, according to calculations by Russell, making it more likely that the Appeals Court will rule against Harvard and issue a precedent-setting decision on affirmative action.
But while liberal majorities in the federal judiciary are under grave threat, the opposite is happening at the state level. Liberal candidates are winning races for state supreme courts across the country, placing longtime Republican majorities under threat and potentially forming a political and judicial counterweight to an increasingly conservative federal judiciary.
In fact, November 3, 2015 may well go down in history as one of the most consequential days for Donald Trump’s presidency. On that day in Pennsylvania, more than a year before the President took office, Democrats won three open seats on the Pennsylvania Supreme Court, and with them, the majority. In January 2018, in a 5-2 decision, the Democratic justices struck down the Republican-drawn state congressional map as an unconstitutional gerrymander, a district map purposely drawn to benefit one party. In February, after the Republicans failed to fix the problem, the court drew a new map, upending the November midterm elections and, with them, the future of Donald Trump’s Presidency.
The political consequences of the court’s redrawn map have already surfaced. Two Republican House incumbents, Ryan Costello and Pat Meehan, have already announced their retirements, and their seats are seen as potential Democratic pickups in November. Overall, the new map could lead to a Democratic gain of three to five congressional seats, according to calculations done by Daily Kos Elections. In an election where control of the House will likely be decided by the narrowest of margins, should Democrats take the majority in November, they might very well owe that majority to the Pennsylvania Supreme Court.
The influence of state supreme courts does not stop at gerrymandering; they also hold what is arguably the more important role of setting much of the legal precedent that impacts Americans’ daily lives. For the vast majority of cases, the state supreme court is the final court of appeal, after which the outcome of the case is settled. The only court higher than state supreme courts is the Supreme Court of the United States, which, historically, has been reluctant to overrule state decisions. In 2007, for example, just 22 cases from state supreme courts were reviewed by the Supreme Court out of the thousands of cases reviewed annually at the state level. As a result of this custom, much of the judicial policy in America is determined by state supreme court justices. State supreme courts can set civil and criminal judicial standards, review public policy, and strike down state laws as unconstitutional.
Judicial elections are not unique to Pennsylvania: 22 states elect judges of their highest court in an either partisan or nonpartisan election. The election of judges has been heavily criticized over the years for a number of reasons, not least of which is that the practice allows political parties to have too much influence over the composition of the high courts, and makes the courts too political. This is even the case in nonpartisan elections, where the candidates often run with the support of a political party.
For several decades, judicial politics has largely been a Republican game. It started when a little-known Texas political operative named Karl Rove flipped the Texas state supreme court from entirely Democratic to entirely Republican, and has culminated with Republican majorities that form more than half of elected state high courts. But in recent years, Democrats, recognizing the potential political impact of state supreme courts, have begun to invest in races across the country with remarkable success. Pennsylvania was not a lone Democratic success. In a 2016 race in North Carolina, Democratic challenger Michael Morgan beat incumbent Republican justice Robert Edmunds by almost 10 points and flipped the North Carolina Supreme Court. And on April 3, 2018, liberal candidate Rebecca Dallet beat Michael Screnock to a seat on the Wisconsin Supreme Court, endangering the longtime Republican majority that has consistently upheld key conservative legislation such as right-to-work laws.
All of these races are notable because they took place in states with congressional maps heavily gerrymandered to favor Republicans. The changing political composition of those courts threatens a replay of the Pennsylvania case: redrawn district maps, Democratic gains in the House, and significant changes to the nation's political landscape. The Democratic establishment seems to recognize this opportunity: the National Democratic Redistricting Committee, (a group formed by former Attorney General Eric Holder, with the backing of former President Obama, to fight Republican gerrymandering in midterm elections), spent $165,000 on the Wisconsin race. And future Democratic targets are not limited to Wisconsin: five states that President Trump won by fewer than ten points (Wisconsin, Michigan, Ohio, Georgia and Texas) have both a Republican gerrymandered map considered as “extreme” as Pennsylvania’s, and a Republican majority on their state supreme court, according to the New York Times.
We are approaching a pivotal moment for the American judicial system. While much of the coverage of this year’s midterms has focused around races for federal and state legislatures and governors, the future of both federal and state courts will be decided in this November’s elections. If Democrats manage to retake the Senate, they can block President Trump’s judicial nominees and halt the conservative takeover of the federal judiciary in its tracks. If they make gains on state supreme courts, they can change policy on the state level and threaten the gerrymanders that protect Republican majorities in the House and state legislatures across the country.
If, on the other hand, Republicans manage to maintain their Senate majority and keep Democratic gains in judicial races to a minimum, they can cement their control over the third branch of government. Because state supreme court justices have long terms and federal judges have lifetime tenure, whoever wins this November will likely control both the state and federal judiciary for years to come. And with legislative and executive systems gridlocked on all levels, policy in recent years has increasingly been shaped through the judicial system. Both the Republican and Democratic parties have a historical opportunity this November to control the judiciary for a generation. We will see who takes it.