While most Americans are distracted by the daily dysfunction flowing out of the White House, the Trump Administration and Senate Republicans are quietly reshaping an entire branch of government
Full speed ahead
Thanks to Republican stalling tactics in the final years of Barack Obama's second term, Donald Trump entered office with 130 Federal court vacancies from the Supreme Court on down.
Past administrations have approached judicial appointments slowly in the early days of their tenure, not Donald Trump. In his first six months in office, he's made an unprecedented 27 nominations, including Supreme Court Justice Neil Gorsuch and nine new nominees to the Federal Court of Appeals.
Eager young ideologues
Trump-era candidates are notably young. The average age of Obama nominees was 55 years; the average age of Trump's new crop is 48.
That doesn't sound like a big age gap, but these are lifetime appointments, and that extra seven years is one or two entire presidencies. "Many of Trump's judicial nominees will be deciding the scope of our civil liberties and the shape of our civil rights law into the year 2050 -- or beyond," writes Democratic lawyer Ron Klain in the Washington Post.
Depending on your ideological bend, that may not be good news. These new nominees are not merely conservative; many are what Slate legal writer Dahlia Lithwick calls "polemicists in robes." They are not sober academics like Gorsuch, but "bomb-throwers, performance artist lawyers who have spent their intellectual lives staking out absurd and often abhorrent legal positions."
Elephant in bluegrass
A recent example is Kentucky attorney John K Bush, who was grilled by Democrats on the Senate Judiciary Committee on his political blog, “Elephant in Bluegrass.” In more than 400 posts, Bush staked out explicitly conservative positions, often citing alt-right conspiracy theories and memes as support.
He insisted he would not bring those views to the Sixth Circuit Court of Appeals.
"Blogging is a political activity," he told the Committee "It is not appropriate to bring politics to the bench, and if I am fortunate enough to be confirmed, I will not bring politics to the bench."
Bush was later confirmed by a Senate vote of 51-47
Outsourcing justice
The speed with which these nominations are being made is usual in an administration which has struggled to fill slots in in its own Executive Branch.
That's mostly because the Administration isn't making the choices in-house. They've handed the task over to the Federalist Society, a national organization of conservative and libertarian lawyers.
As with so many things in this White House: this is not normal. Past administrations have usually selected new judges in consultation with the Department of Justice, with only some input from outside groups.
Here, the Federalist Society is doing most of the recommendations and vetting themselves. Neil Gorsuch -- a longtime Federalist Society member -- was their selection.
Strange bedfellows
There would seem to be little natural affinity between the Federalist Society and Donald Trump, a man who has shown real disdain for the rule of law and a relatively poor grasp of Constitutional principles. But they're playing the long game, says Amanda Hollis-Brusky, author of “Ideas With Consequences: The Federalist Society and the Conservative Counterrevolution.”
"Access to power is key to the Federalist Society's long-term goal of capturing the courts and reorienting constitutional and legal culture to embrace conservative and libertarian ideas.
Access to Trump means access to power and because judges and justices serve, on average, 26 years on the bench, the Federalist Society's influence will long outlast this president."
Americans will be living with their choices for many, many years to come.
