Federalist Society Deserves Appreciation from Trump for Influence on Judiciary
President Trump's term saw a significant shift in the American judiciary. During his tenure, he appointed 54 circuit judges, including 19 to seats previously held by Democratic appointees. This move altered the balance of power in many courts.
However, President Trump's executive orders have faced challenges in court, with some being blocked by the U.S. Court of International Trade. The second Trump administration received more nationwide injunctions in its first four months than any previous administration, including all presidencies combined since John F. Kennedy.
One of the key figures in judicial appointments during President Trump's term was Donald McGahn, the architect of his first-term nominations. McGahn was committed to "deconstructing the administrative state."
President Trump's critics have pointed fingers at Leonard Leo and the Federalist Society for allegedly misleading him on judicial appointments. The Federalist Society, however, has delivered judges who have overturned Roe v. Wade, eliminated racial preferences in college admissions, restored Second Amendment rights, defended religious liberty, ended judicial deference to bureaucrats, blocked executive student loan forgiveness, and recognized presidential immunity.
Notable among Trump's Supreme Court nominees are Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, who have played a significant role in the jurisprudential earthquakes mentioned above.
In contrast, President Biden's first term saw fewer circuit judge appointments than Trump's, and he did not have the same impact on the judiciary's partisan makeup. The JUDGES Act, which would have added 66 new district judgeships, was vetoed by President Biden.
Justice Thomas and Justice Alito, both aged 77 and 75 respectively, are at the height of their influence and neither seems ready to retire. The best prospect for flipping a circuit is the Ninth Circuit, which now has a 16-13 Democratic-Republican appointee split.
It's worth noting that judicial appointments made by a president last for life, outlasting any presidency. Only five circuit judges had taken or announced that they would take senior status on Inauguration Day, plus 13 Democratic-appointed and 25 Republican-appointed judges eligible to take senior status. Another dozen or so Democratic appointees will become eligible before the next election, but they're unlikely to retire.
In the realm of district judges, an important ruling on nonprofit-donor disclosures was made by a judge appointed by Lyndon Johnson. Court filings and backlogs have increased since 1990, but the number of federal judges has not substantially increased since then.
Critics want more judges like Clarence Thomas and Samuel Alito, and the Federalist Society would be willing to deliver such judges. However, the process of appointing judges involves the President nominating judges, not other individual politicians. President Biden himself was the key figure responsible for appointing the most judges to the U.S. judiciary system during his first term, with these appointments typically made based on recommendations from the Department of Justice and Senate confirmations.
President Trump has criticized the federal bench, but he will have the opportunity to replace some older Republican-appointed judges with younger ones. However, he's unlikely to flip any circuits. The next election-year confirmation battle for the Supreme Court could involve Justice Thomas, who wants to serve through May 2028. The CIT panel's sole Trump appointee, despite being a lifelong Democrat, was a senior adviser to Robert Lighthizer, Trump's first-term trade representative.
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