The Trump administration has strategically focused on the appointment of judges to the crucial appeals-court rung of the US judiciary as part of its concerted effort to axe Obama era policies.
Yet, as the White House has pushed a record number of appellate judges through the Senate, its number of appointments to the district courts - the first level of the three-tier federal judiciary - ranks far behind that of most recent presidents.
It’s a pattern that President Donald Trump himself apparently questioned earlier this year, angered by district court judges who were blocking parts of his agenda, particularly related to his immigration restrictions.
Federalist Society executive vice president Leonard Leo, who has worked closely with White House Counsel Don McGahn on nominations and spoken regularly with Trump, told CNN about a January conversation in which the President complained that district court judges were exceeding their authority in thwarting his initiatives.
“He expressed concern about whether nationwide injunctions were legal, and what ensued was a pretty thoughtful exchange about whether the pace of district court confirmations ought to pick up as a response to this. We went back and forth … and the President concluded that appellate had to be the priority,” Leo said.
Earlier in January, Trump had responded angrily – denouncing on Twitter a “broken and unfair Court System” – when a US district court judge in San Francisco temporarily blocked his plan to end the “Dreamers” program protecting immigrants who came to the US illegally as children from deportation.
The effort by Trump and Senate Majority Leader Mitch McConnell to confirm appeals court judges reveals an ideologically charged approach likely to have a lasting impact on the country and marking a major success for Republicans.
Conservatives dating back to President Ronald Reagan in the 1980s have focused on court appointments to affect the law related to social issues such as abortion, religion and race. Trump has been able to move faster on appointments, largely because Republican leader McConnell shares the priority and because relatively new Senate practices give the minority party - Democrats in this case - fewer options to block confirmation votes.
In 2016, McConnell led the Senate’s refusal to act on President Barack Obama’s choice for the US Supreme Court, appeals court Judge Merrick Garland. The Kentucky Republican then oversaw the Senate change in filibuster rules to win confirmation for Neil Gorsuch, Trump’s choice for the high court after he had won election.
Appellate courts usually have the last word
The 13 regional US appeals courts are the final stop for most lawsuits, because the Supreme Court takes up fewer than 1% of all appeals. Cases begin in district courts, but lawyers considering their overall prospects often look to a region’s appeals court, knowing that its precedents set the rules for trial and that an appeals court would likely offer final judgment on a case.
Trump’s effort to roll back Obama policy and set a new domestic agenda is likely to rest ultimately with appeals courts. Among pending lawsuits are those challenging immigrant-related initiatives such as the travel ban on certain majority-Muslim countries and financial penalties on so-called sanctuary cities, as well as against the proposed exclusion of transgender individuals in the US military.
Appeals courts also have been the proving ground for Supreme Court candidates. Of the 10 Supreme Court justices confirmed in the last 30 years, nine were plucked from US appeals courts. (Justice Elena Kagan is the exception. She was serving as US solicitor general at the time of her 2010 nomination.)
Federal judges at all three rungs – trial, appellate and Supreme Court – are appointed for life. They affect the law of the land for years after a president has left office and can be an executive’s most enduring legacy.
Trump has touted his effort to transform the bench, including the choice of Gorsuch for the Supreme Court.
White House counsel McGahn said earlier this year at a Conservative Political Action Conference meeting that the administration wanted nominees whose visions aligned with Trump’s interest in reducing regulations and who would “stand strong” on Trump’s priorities. “It’s part of a larger plan,” McGahn said.
The White House declined a request by CNN to comment on its judiciary priorities for this story.
Trump has won Senate confirmation of a total 21 appeals court judges so far. He has far outpaced the five presidents who came immediately before him, according to records from the Senate Judiciary Committee and American Constitution Society. At this point in his first term, President Barack Obama had named nine appeals court judges, President George W. Bush, nine appeals court judges; President Bill Clinton, eight appeals court judges; President George H.W. Bush, 12; and President Reagan, 13.
But Trump’s record for confirmations to the district court lags far behind most of his predecessors.
He has appointed 17 district court judges. For the same period of a first term, Obama had named 16 district court judges; George W. Bush, 45 district court judges; Clinton, 50; George H.W. Bush, 30; and Reagan, 45.
Trump has 72 district court nominations pending, along with 10 more appeals court nominations. There are a total 179 seats at the appeals court level, a total 673 at the district court level. The Administrative Office of the US Courts lists 66 court vacancies for which no nomination has yet been made. Almost all such vacancies are in the district courts.
Sheldon Goldman, a University of Massachusetts at Amherst political science professor who has tracked judicial selection since the 1960s, said the Trump administration’s emphasis on appellate judges is not surprising because that’s where “much of the Trump agenda will ultimately rise or fall.”
Goldman also predicted the administration’s “laser-like focus on judicial nominations” would ratchet up the politicization of the bench.
“If you take the long view,” Goldman said, “eventually the Democrats will get the White House, eventually the Democrats will win back the Senate. And now there’s all this precedent for a Democratic president to do the reverse. It’s going to be make for an even bumpier political ride for this country.”
CNN’s Kevin Liptak contributed to this report.