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Trump's Judicial Legacy


The president of the United States may be a master of distraction, with one dramatic story unfolding after another, but when it comes to judges, his administration has been very disciplined. In a little over two years in office, the Trump administration has appointed almost 1 out of every 4 federal appeals court judges in the United States. Earlier this week, the president called it his legacy. NPR's Carrie Johnson reports on how the White House is starting to reshape the bench.

CARRIE JOHNSON, BYLINE: Federal judges serve for life, so President Trump's achievements on judicial nominations could represent his most enduring contribution.

BRIAN FALLON: The sheer number of people that Trump is installing at a very young age ensures that the legacy of Trumpism is going to be with us for the next three to four decades.

JOHNSON: Brian Fallon is executive director at Demand Justice. It's a left-leaning group designed to fight Trump's judge nominations and to rally Democrats. So far, the White House and Senate Majority Leader Mitch McConnell are dominating in that arena. Trump has installed nearly 25% of all federal appeals court judges and about 15% of all district court judges.

KRISTINE LUCIUS: What stands out to me is that President Trump is deliberately nominating the least diverse class of judicial nominees that we have seen in modern history.

JOHNSON: Kristine Lucius of The Leadership Conference on Civil and Human Rights says there's something unusual about them.

LUCIUS: It is stunning to me that 2 1/2 years in he has not nominated a single African American or a single Latinx to the appellate courts.

JOHNSON: In all, around 70% of Trump's judge appointees are white men. Dozens of those nominees have refused to answer whether they support the Supreme Court holding in Brown v. Board of Education. That 1954 opinion said racial segregation in schools was unconstitutional. Conservative legal analyst Ed Whalen says there are good reasons why some judge candidates balk at those questions.

ED WHALEN: Well, I think there's a game being played here, and the critics are part of that game. It's quite clear that what Democratic senators' aims do with that questioning is say, well, if you're going to answer questions about Brown, why won't you answer questions about Roe?

JOHNSON: Whalen is talking about Roe v. Wade, the decision that legalized abortion. Abortion rights groups worry that ruling is now under attack from a new generation of judges with ties to the conservative Federalist Society.

Russell Wheeler studies judge nominations at the Brookings Institution. He says Trump has mostly replaced judges appointed by Republican presidents with his own candidates, adding to conservative majorities in courts based in the South and narrowing the margin in the Ninth Circuit, a frequent target of this president's attacks. Wheeler says the Trump nominees are a new kind of conservative.

RUSSELL WHEELER: When you replace a 70-year-old George W. Bush appointee who is slightly to the right of center with a 45-year-old movement conservative, obviously, you're not trading apples for apples.

JOHNSON: Still, he says, Trump and Senator McConnell may have reached a high watermark on the federal appeals courts, filling vacancies so quickly that there are unlikely to be many more openings on the circuit courts in the year ahead. Attention is turning now to the lower courts which handle cases on civil rights, the environment, financial regulation and federal crimes. Republicans now hold 53 seats in the Senate, so it will be difficult for Democrats to block Trump's judge nominees. Again, Russell Wheeler.

WHEELER: The president and the Senate have pretty much full reign within the Senate to confirm whomever they want.

JOHNSON: In a few cases, though, it's been Republican senators who have brought down the president's own nominees, getting the candidates to withdraw sometimes because they're not conservative enough. For progressive activists, that only highlights the need for Democrats to take judges more seriously.

Brian Fallon of Demand Justice says that Democratic presidential candidates are campaigning on ambitious ideas - climate change policies, health care, financial regulation. Those things, he says, will get to court and will need to survive judicial review in front of judges, many of whom were appointed by President Trump. Fallon has this to say to Democrats vying for the White House.

FALLON: They actually owe it to the voters to explain very clearly what they're going to do to take back the courts and who they'll nominate in order to do that.

JOHNSON: Carrie Johnson, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Carrie Johnson is a justice correspondent for the Washington Desk.
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