An indisputable legacy of Donald Trump
Trump will make history, not because he was the third president to see the House of Representatives vote his impeachment, nor for having presided over a period of great economic prosperity or for having substantially reduced taxes.
In his first term, he succeeded in accomplishing what conservative Republicans had dreamed of for decades: undoing a century of political progress aimed at making the courts more diverse and more representative of the social and demographic makeup of American society.
Before nominating his candidates for judicial office, Trump systematically consults the Federalist Society, an association of conservative jurists whose ultimate goal is to promote the appointment of judges who read the constitution very strictly. These jurists oppose any law that has no basis in the constitution.
Republican Majority Leader Mitch McConnell literally blew up the rules governing how the Senate works. Thus, the opposition can no longer resort to the parliamentary obstruction system (filibuster) requiring a vote of 60 senators out of 100. From now on, a simple majority of 51 senators suffices to confirm the appointment of a federal judge. This change in procedural rules allows Republicans to confirm in record numbers the people nominated by the president.
Thus the record of confirmation of those appointed by Trump is remarkable. During his first term, Obama saw only 141 of his confirmed appointments. However, 216 were in the first two years of Trump's presidency, or nearly 25% of the 890 federal judges. This is definitely the greatest success of Trump's presidency from the perspective of conservative Republicans.
This contribution means that Trump will have significantly reshaped the US federal justice system in his first term. This is especially true since the judges appointed by Trump are on average 10 years younger than those appointed by his predecessors and they are also much more ideologically conservative. As these judges are often in their 30s or 40s and are appointed for life, their influence will last for more than a generation.
Since the 1930s, the various administrations, both Democrats and Republican, had chosen to make the American justice system more diverse and to match it with the demographic composition of the country. Trump's appointments set aside decades of progress in this direction.
To account for racial, cultural and gender diversity, the percentage of white males nominated by presidents fell from 66% under Carter, to 53% under Clinton, to 36% under Obama. At the end of Obama’s reign, that number was still slightly higher than the 34% proportion of white males in American society.
During his 2016 presidential campaign, Trump said he wanted to "make America great again." In his reshaping of the federal justice system, his promise really means "to make America white again." While the white population is less than 65% and will become a minority around 2045, 96% of those nominated by Trump to become federal judges are white, 76% of whom are white males.
His two Supreme Court appointments cemented the conservative majority in America's highest court. This Court is already in a position to make historic changes in the federal justice system. However, if Trump gets a second term, he will be able to consolidate that Tory majority with the appointment of at least one additional judge to replace a liberal judge.
Most observers focus on Supreme Court appointments. But in doing so, they overlook the importance of judges appointed to appellate courts. The latter decide most of the matters brought before the federal courts. While the Supreme Court only examines 100 cases per year, appellate courts resolve an average of 50,000 cases annually.
However, the Trump administration pays special attention to the appointment of judges to appeals. Many of these appointments are viewed by the American Jurists Association as unprofessional and ideologically highly biased on matters relating to abortion, the right to vote, or gay rights.
The anticipated changes go well beyond social issues such as abortion or religious freedom. The Republican ascendancy within the highest court will inevitably lead to procedural reforms in the functioning of the judiciary. For example, the Supreme Court will be able to restrict "the ability of district court judges to issue injunctions nationwide."
One of the major questions attracting the attention of jurists and judges concerns the importance of the administrative state. However, conservative Republicans have been asking the Supreme Court for more than 40 years to reconsider the administrative powers of federal agencies that they considered to be too independent in the application of regulatory and social protection policies. The appointments made by Trump support less federal regulation.
This policy shift in the cultural makeup of the courts will have serious consequences not only for the functioning of the federal justice system, but also for the future of American democracy. This "laundering" of the judicial system can only undermine the legitimacy of the courts and the confidence of the public - and more particularly of minorities - in the appearance of justice in its functioning.
