How to Wipe Out Trump's Stamp on the Federal Judiciary

Former New York federal court Judge Shira Scheindlin has an op-ed in the Guardian on how Trump took over the federal Judiciary with his abundant lifetime appointments of judges to our federal courts --including district and appellate courts and the Supreme Court.

There are a total of 816 active federal judges comprising the supreme court, the 13 appellate courts, and 91 district courts. In just one term Trump was able to appoint 28% of those judges due to past and continuing vacancies. Most importantly, he appointed 33% of America’s nine supreme court justices and 30% of the appellate judges.

Trump, desperate as always to leave his mark on something he touched, made sure to appoint young (by judicial standards) mostly white males to our nation's courts. [More....]

The average age of his appellate judges was 47 (five years younger than those selected by Barack Obama). Six of those were in their 30s, and 20 were under 45. By contrast, of the 55 appellate judges picked by Obama – in eight years, not four – none were in their 30s and only six were younger than 45.


The Federal Judicial Center has found that this age disparity means that Trump judges will serve 270 more years than Obama’s judges, and they will decide thousands more cases.

Scheindlen notes that not one of Trump's appointees was Black. Scheindlen then moves on to her biggest criticism: She writes that Trump's appointees have created a "shadow bench".

A new term has been coined – the shadow docket – which refers to the sudden uptick in emergency requests filed by the government. In the 16 years preceding the Trump presidency only eight such requests were filed, and, of those, only four were granted. By contrast, during Trump’s four-year term, 41 such applications were made, of which 24 were granted – a 70% success rate that supported Trump’s policies. These cases are heard without full briefing, without oral argument, and often result in a single-sentence order as opposed to a full reasoned opinion.

Scheindlein gives 5 examples of instances where Trump's legal minions used this tactic, often successfully:

  • In Wisconsin, reverse a trial court order which granted more time to receive absentee ballots.
    allowing an extension for the receipt of absentee ballots. "The last-minute supreme court decision issued the day before the election caused chaos and confusion."
  • To overturn four decisions refusing to carry out executions due to the use of the drug Penobarbital. In one case, the execution was able to proceed, and the now-deceased inmate became the first person to be executed at the federal level in 17 years.
  • To enforce "his administration’s rule prohibiting migrants from seeking asylum in the US before seeking it in the countries through which they had travelled." When a lower court found it unconstitutional, Trump went to the Supreme Court which allowed the rule to go into effect immediately, even though challenges were still pending in other courts.
  • Most recently, the Texas Abortion Law.

....in yet another emergency appeal, the supreme court by a 5-4 margin, refused to block the newly enacted Texas law banning abortion after six weeks of pregnancy, allowing that rule to be enforced for the foreseeable future. This emergency request was brought by abortion providers after the very conservative fifth circuit court of appeals, to which Trump had appointed six judges, stopped the trial court from holding a hearing as to whether the new law could take immediate effect. A month later a trial judge blocked the law from taking effect and the fifth circuit promptly reversed. The Department of Justice is now appealing that decision to the supreme court.

Scheindlein writes that"This unprecedented haste, and acquiescence to the importuning of the executive branch, gave the appearance that the supreme court was no longer an independent and co-equal branch of government but rather a partner of the Trump-led executive branch."

She then discusses three proposed plans to reform the federal courts, such as eliminating life tenure and making retirement mandatory at 70 or 75; expanding the number of Justices on the Supreme Court; and restricting the use of emergency appeals which result in the "shadow docket". This would be accomplished by:

....requiring briefing, argument, and a reasoned opinion on all emergency matters; imposing a code of conduct and ethics on supreme court justices similar to that binding lower court judges; requiring a 6-3 super-majority before finding a federal statute unconstitutional; and requiring that Congress consider any presidential nomination within a fixed period of time – perhaps 45 days after nomination.

Of course, as Scheindlein notes, this is not the only thing Trump left his mark on. He is the first person to have his own desk in the Oval Office who was:

...twice impeached, to have supported, or even incited, an insurrection against democracy, and [who allowed] thousands to die due to his abject failure to lead the nation in fighting the Covid-19 pandemic.

Judge Scheindlein offers good proposals for judicial reform to remove the stink Trump created, but I wonder if it's not putting the cart before the horse. Trump is trying to build a yellow brick road for himself and his children that leads right back to the White House and the halls of Congress. If he is successful, it will be Democrats who are in the minority and who are reined in by the new rules restricting emergency appeals and it will be progressive judges, already in short supply, who are forced off the bench at 70 or 75. On the other hand, I agree with Scheindlein that:

Trump’s brazen capture of the supreme court, engineered with the help of the Republican Senate majority, requires a bold response. If reform efforts fail, which is likely given the arcane Senate rules, Trump will have succeeded in entrenching his regressive, if not destructive, political agenda.

Is there a way to do both? Reform our courts now and mobilize to prevent Trump and his children from returning to positions of power? I think we need to do both, although the latter effort will result in giving him the publicity he craves. He doesn't care if his coverage is favorable or negative. He just wants to be in the news, on a network besides the one he's building.

Question: In a world in which COVID-19 will go from pandemic to endemic, meaning we will all have to live with it since it won't be erased, will anyone have the energy or will to battle the attempted return of Trump?

< Joe Biden's Makes His Mark on the Judiciary | Thursday Open Thread >
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  • Display: Sort:
    Elizabeth Prelogar, who (5.00 / 3) (#3)
    by KeysDan on Mon Nov 01, 2021 at 01:27:40 PM EST
    was confirmed as Solicitor General just last Thursday, presented the United States case in the Texas Vigilante Abortion case (SB 8).

     The former beauty queen, who holds a Baccalaureate degree from Emory University, a master's in literature from St. Andrews University (Fulbright), and Harvard Law (clerked for Justices Ginsberg and Kagan as well as Judge Merrick Garland),  did a masterful job.

    Her argument included "If a state can just take this simple mechanism of taking its enforcement authority and giving it to the general public, backed up by a bounty of $10,000 or one million dollars, no Constitutional right is safe."  The Texas law is in "open defiance of Supreme Court precedent."  

    While the issue at hand was not the right to abortion directly, the Texas law was allowed to take effect in September, effectively, eliminating abortion rights after six weeks for all Texas women. The issue is whether the DOJ can mount a federal constitutional challenge to the Texas law, which has an enforcement scheme to shield it from federal court review.

    In addition to her legal expertise and being fast on her feet, she fielded the questions of the horrible Alito, leaving him ,in my view, licking wounds he did not seem to fully realize were inflicted.

    Although the brilliance of the US case is unlikely to make a difference with this Court (although Kavanaugh, as one of the majority in the September midnight ruling allowing the Texas law to go into effect, did seem to have some second thoughts, perhaps owing to General Prelogar's argument that such a law could be passed by any state that did not agree with a SC decision, such as Second Amendment).  

    It was heartening to see the quality of this key Biden Administration appointment. At the age of 41, she is just right for a judgeship, and then, a Supreme Court nomination.

    I also listened in to the arguments (5.00 / 3) (#4)
    by Peter G on Mon Nov 01, 2021 at 03:22:14 PM EST
    and I agree that "General" Prelogar (rhymes with "key logger," btw) is a terrific advocate. That said, it seems more likely that Planned Parenthood and other Texas clinics will win their case (even though their lawyer, while pretty good, was not nearly as excellent) than that the feds will win. Which is fine, because if either of them wins, then the Texas law will be enjoined. In fact, Justice Kagan plausibly suggested that if the private parties win their case, then the federal government's case might even be moot and not need to be decided at all.
       I thought the best tit-for-tat hypothetical was not so much possibility of a liberal state passing an equivalent anti-Second Amendment law, as the question, What if Arkansas had passed a law in 1956, at the request of Governor Faubus, otherwise modeled on this Texas statute, authorizing anyone who felt like it to sue anyone who enrolled or assisting in enrolling a Black child in an all-while public school? How would that be different? The Solicitor General of Texas had no answer for that question.

    Yes, and it (none / 0) (#5)
    by KeysDan on Mon Nov 01, 2021 at 03:49:47 PM EST
    was Justice Thomas who asked the question about Faubus--and not a hypothetical case he lectured the Solicitor General of Texas. It would seem from that exchange that Thomas would be on board with enjoinment. But, still...abortion.

    Justice Gorsuch seems to just love him some Texas abortion law. And, Alito..well you know my take...not a political hack don'tcha know. The Handmaiden was quite civil and is keeping her head down pretty much as a newbie--at least for rulings that she needs to sign her name to. Probably will go with Texas clinics/Planned Parenthood approach.

    It did seem to be shaping up, if oral arguments are any clue, that Texas clinics and Planned Parenthood were getting a better shake than the U.S. But, it does seem to me that it is important for the US to prevail in the case--from perspectives of federal supremacy and protecting the constitutional rights of the individual woman from unconstitutional state laws.


    Errata (none / 0) (#6)
    by KeysDan on Mon Nov 01, 2021 at 09:19:49 PM EST
    Typo on the name of the late Justice Ginsburg. Regrets.

    I think if we love our country, ... (none / 0) (#1)
    by Donald from Hawaii on Sun Oct 31, 2021 at 05:58:58 AM EST
    ... then COVID or no COVID, this is our "Stand beside her and guide her" moment.


    His mark will be on the courts (none / 0) (#2)
    by CaptHowdy on Sun Oct 31, 2021 at 07:43:54 PM EST
    for the rest of my life.  But I don't think he, or his children, are a threat.  The Republican Party does not love him.  The fear him.  I think over the next year or so they will be given reasons to fear him less.  All they want is a reason to cut him loose.  

    Or if I'm wrong about that the next election will be good for us.