Amy Coney Barrett's nomination shows how, on judges, Trump has already won

Alexander Nazaryan

·National Correspondent

Sun, October 11, 2020, 10:51 PM EDT

WASHINGTON—With the confirmation hearings for Amy Coney Barrett beginning on Monday, Republicans hope to shift focus away from the coronavirus pandemic and back to what they hope is a winning closing argument in the final weeks of the presidential election season: Trump’s confirmation of conservative judges.

That narrative could well get lost in a cavalcade of grim news. Nearly a quarter-million Americans are dead from the coronavirus, and millions are out of work. California is smoldering. Hurricanes are coming. So is winter. It is safe to say that judicial appointments are not foremost on the minds of most Americans.

With the president’s own COVID-19 diagnosis continuing to be the biggest story in American politics, Republicans will have a difficult time turning attention to judges this week.

There will be none of the drama or pomp that have been the frequent hallmarks of Trumpism. Two of the Republicans on the Senate Judiciary Committee have tested positive for the coronavirus, likely during a Rose Garden event (the event, ironically, was to announce Barrett’s nomination). Meanwhile, the panel’s most prominent Democrat— vice presidential nominee Kamala Harris—has already said she will only attend remotely. If other Democrats do the same, leaving Barrett and Republicans in a nearly-empty committee room, the proceedings could lose credibility with the American public, which is already unsure of whether the hearings should proceed so close to the election.

Even so, Barrett will likely be voted out of the Senate Judiciary Committee by the end of the week. Then she will face the full Republican-controlled Senate, which will confirm her with the narrowest of margins.

"She'll be confirmed. No doubt about it," conservative attorney and legal scholar David Rivkin told Yahoo News. Democrats know this to be the case, too. The requisite defections they need in the full Senate are not likely to materialize. “The fact of the matter is that [Senate Majority Leader] Mitch McConnell has the votes,” Mazie Hirono, the Hawaii senator and a member of the Judiciary Committee, told NPR late last month. Nearly three weeks after she made that statement, he still has those votes.

That’s because, for all their vows to fight the nomination at every step of the way, Democrats have few weapons with which to do so. The most potent weapon, after all, is a voting majority, and in this case it belongs to the Republicans.

Barrett’s confirmation could come at a high price for vulnerable Republicans facing re-election contests in blue or bluish states that were difficult to begin with. Although court openings tend to usually energize Republicans, this time is different. The left is angry, and the likes of Cory Gardner in Colorado and Susan Collins in Maine could pay. Republican leadership knows and is willing to take its chances.

Judge Amy Coney Barrett listens top a GOP senator during their meeting on Capitol Hill. (AP/Manuel Balce Ceneta, Pool)

Trump “has created a Warren court of the right,” says Princeton political scientist Julian E. Zelizer, referring to Earl Warren, nominated to the Supreme Court by Republican President Eisenhower. Warren proved a surprise liberal, to the chagrin of Eisenhower and Republicans for generations to come. His ability to persuade his new colleagues to issue a unanimous ruling in Brown v. Board of Education, the 1954 decision that struck down legal segregation across the South, ushered in an insistently progressive era for the court—and also spurred a prolonged conservative backlash that has continued to this day.

For the right, the battle against “judicial activism” is a battle against what conservatives see as the excesses of the Warren Court. Today, when Trump nominees refuse to say whether Brown v. Board was properly decided, they are not tacitly acknowledging that they support the return of racial segregation, even if some of those nominees have had disturbing views on matters like race and gender. Instead, the hesitation on Brown is meant to signal that the nominee is broadly a skeptic of the Supreme Court’s left-leaning rulings on issues in favor of same-sex marriage, abortion rights and the Affordable Care Act, an Obama-era law that Republicans have been desperate to nullify.

The successful confirmation of Barrett will be the capstone of work begun in the 1980s by the Federalist Society and other conservative judicial groups, some of which were active even earlier. And it will come at a time of acute disappointment with Chief Justice John Roberts, who has certainly not been a Warren-like secret liberal but has proved to not be the sturdy conservative his supporters expected. Barrett is likely to blunt his moderating influence and shift the court decisively to the right.

But the most astonishing thing about the Barrett confirmation is how little it matters to the greater makeup of the federal judiciary. Trump has done what he promised, remaking the federal bench in the image foisted upon him by the Federalist Society and Heritage Foundation, who have supplied him with young, ideological nominees for every opening on district and appellate (or circuit) courts.

The key development came after Republicans retook the Senate in 2014. McConnell, the incoming majority leader, simply refused to consider Obama nominees, hijacking the nomination process in a devastating maneuver whose significance Democrats were slow to grasp. Only one of those failed nominees—Merrick Garland, nominated to the Supreme Court in early 2016—is widely remembered, his name having become a progressive battlecry. But there were dozens upon dozens of others who never got the hearing they would have been right to expect in less partisan times. McConnell’s strategic intransigence meant that Obama left the White House with 105 judicial vacancies.

Senate Majority Leader Mitch McConnell walks through the Senate subway earlier this month. (Tasos Katopodis/Getty Images)

Judicial nominations are perfectly suited to Trump’s governing style, requiring little effort from the president but conferring plenty of glory on the Oval Office should nomination turn into confirmation. And with the Senate under Republican control for the last half-decade, that has inevitably been the case. Trump has confirmed more judges in four years (218) than George W. Bush did in eight (203), according to statistics compiled by the Heritage Foundation. In his two terms, Obama managed to confirm only 160 judges.

None of those lower-court judges is a household name, whereas Brett Kavanaugh’s lament about the beery excesses of youth is seared into the national memory. Yet it is those lower-court judges who will decide the overwhelming majority of federal cases, including on social issues like abortion and guns. For all its cultural import, the Supreme Court grants a writ of certiorari to about one percent of all petitions submitted each year. Usually, that amounts to no more than about 100 cases.

That leaves thousands of cases to be ultimately adjudicated in appellate or district courts. There, Trump’s influence has been especially pronounced; it is likely to outlast several presidents. The lifetime appointments have been, in many cases, tendered to nominees in their 30s or 40s. Kathryn Mizelle, nominated by Trump to a Florida district court, is only 33. She could potentially remain a federal judge as six or seven presidents pass through the Oval Office.

Trump’s influence on the circuit courts has been especially consequential. “Typically the public focuses on the Supreme Court and weigh in when there's an opening,” says Nan Aron of the progressive judicial group Alliance for Justice. “But what is not as widely known is that the circuit courts hear tens of thousands of cases a year.”

One such case came last week, after Texas governor Gregg Abbott tried to limit the number of drop boxes available to voters wishing to cast their ballots by mail. A circuit court ruled against him, but a 5th Circuit panel took Abbott’s side in an emergency stay. All three of the judges who ruled in favor of the voting restrictions had been appointed by Trump.

Trump had once wanted to break up the Ninth Circuit, which includes California and much of the West. But an easier recourse was available, and Trump has taken it. There are now ten Trump judges on that appellate court. No other president has as many (Bill Clinton is closest with nine). The same goes for the 2nd Circuit, whose jurisdiction includes New York and, by dint of that fact, some of the most important cases in the federal judiciary. There are five Trump judges on the 2nd Circuit, whereas Clinton and Obama both have three, while Bush had two.

The White House is illuminated in rainbow colors after today's historic Supreme Court ruling legalizing gay marriage in Washington June 26, 2015. REUTERS/Gary Cameron TPX IMAGES OF THE DAY

Chief Justice Roberts has resisted this kind of thinking. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them,” he said in 2018. But the judges Trump has selected have undergone rigorous ideological stress tests on issues ranging from abortion to corporate power. With little interest of his own in the legal profession, Trump has been happy to cede the nomination process to groups nakedly interested in specific policy outcomes.

If the 53 appellate judges weren’t enough, there are also the 161 judges Trump has successfully nominated to lower district courts, which constitute the lowest rung of the federal judiciary. Together, the district and appellate judges are so solidly Republican that they can effectively counter progressive policy emanating from the two other branches of government.

That’s why, his other governing shortcomings aside, Trump can credibly claim to have achieved the Republican goal of a judiciary that is so consevative that its members are actually to the right of large swathes of American society on many controversial issues. And the number of judges he has appointed is so great that he can additionally claim that the effect of those appointments will be felt for decades to come.

Amy Coney Barrrett’s confirmation is therefore less consequential, in a way, than the confirmations of dozens of judges to the lower courts. Even if her nomination fails, Trump has already won.