In America’s cold civil war, it’s easy to focus on the pitched battles for the presidency and congress and, aside from occasional Supreme Court decisions that manage to penetrate our consciousness, forget an entire third branch of government. That’s because the fights over the political branches are surface operations while the battle for the courts is most akin to submarine warfare.
But glossing over the judiciary branch is a mistake. It is immensely powerful, not only because it can shape and even override the actions of the Congress and the president, but also because judges and prosecutors make decisions in literally thousands of cases every day that impact Americans’ lives and shape the contours of our democracy.
And in this particular theater of political war, the Republican Party of Donald Trump is flat-out winning.
Between judicial appointments and the corruption of the chief law enforcement officer of the United States, our entire system is being hit with a one-two punch.
The Supreme Court is the highest profile entity in the judiciary, but it is only the tip of the iceberg. Underneath the Supreme Court there are 13 courts of appeals, and below them 94 district courts. Most of the time, it is those lower courts that have the final word on questions of federal law, particularly the appeals courts: Supreme Court Justice Sonia Sotomayor once said they are “where policy is made.” Every year there are about 300,000 civil case filings and 90,000 criminal case filings in district courts. Of all of these, federal appeals courts see only a small fraction, at about 50,000 filings a year. And of those, the Supreme Court sees only about 7,000 filings, and only hears about 100-150 cases.
Trump has substantially shifted the calculus of those courts, and therefore the disposition of those cases. Of the 870 federal judges who make decisions in the lower courts, Trump has now appointed about one-quarter of them, disproportionately at the court of appeals level and enabled by Mitch McConnell’s barely constitutional maneuver to refuse to confirm Obama appointees, which created a glut of vacancies.
And while Trump may not have broken records for the number of judges he’s installed in the judiciary, they have made a big difference in the balance of power. Just as with the metaphorical scales of justice, small margins on one side can determine the outcomes of thousands of cases. And at the ultra-important appellate level (which, remember, has the final word on 85% of the cases that reach it), Trump has shifted Republican-appointed judges from holding 40% of the seats to an outright majority at 54%. Trump has also flipped 3 of those 13 courts to Republican-appointed majorities, meaning that 7 of the 13 Courts of Appeals are now controlled by jurists picked by the GOP.
Also, it’s not just how many judges he’s appointed, but who they are. The notion that Republicans nominate the youngest and most conservative possible judges to maximize their impact is true: the median age of a Trump appointee is a full four years younger than it was under Obama. And while it is hard to know how conservative a young judge will ultimately turn out to be (see Souter, David), comprehensive analyses have shown Trump judges to be far more partisan, activist, and socially conservative than those from any other president (a surprising number of Trump’s appointees have also been unqualified or under-qualified, implying that the most important credential in this administration’s eyes is being a right-wing warrior).
This combination of youth and zealotry led former Trump advisor Steve Bannon to call this cohort of Trump judges “a Kafkaesque nightmare” for the Left, because “Donald Trump is going to be in their personal lives 10, 20 and 30 years from now.”
While it’s looking like a pretty decent bet that Trump will be a one-term president today, if he squeaks into another one and simply matched the average pace of appointments of other two-term presidents over the last 40 years, it would leave America with almost half of our district and appellate court seats being occupied by Trump judges.
Overall, Trump’s enduring influence on the courts would go from significant to overwhelming. Betting markets currently see about a 1/3 chance of a Trump second term. If there were a 1/3 chance of a tornado destroying your house in four months, you would move.
But this is just one hand in the one-two punch. Attorney General William Barr is the haymaker.
The Attorney General is the chief law enforcement officer of the United States, directing prosecutions, advising the president on legal matters, and interpreting the laws that govern executive agencies. He or she has vast power over how our laws are applied.
Congressman Steve Cohen (D-TN) recently introduced a resolution to impeach Barr which lays out his flagrant abuses of those powers, stating that Barr “has taken deliberate actions that violate the rights of the American people, assault the principle of impartial administration of justice, and undermine the constitutional structure of separation of powers across three co-equal branches of Government.”
The document reads as an indictment, stunning in the way it sorts Barr’s actions into coherent buckets of lawlessness. Barr impaired the function of the Congress by preventing testimony and withholding information to cover for administration misdeeds. He misled the public in his sham summary of the Mueller report and by lying about Russian interference in the 2016 election while inventing claims of spying on the Trump campaign. Barr abused his office by conspiring in Rudy Giuliani’s smear campaign targeting former Vice President Joe Biden.
He “obstructed justice, undermined the American people’s confidence in the criminal justice system, abused the authority of his office, and violated the principle of equal justice under law by repeatedly providing favor to the friends and political allies of President Trump,” including Michael Cohen, Roger Stone and Michael Flynn--and by removing Geoffrey Berman as US Attorney for the Southern District of New York. Barr ordered investigations of the marijuana industry based on his own conservative politics, and of the auto industry for opposing Trump’s attempts to loosen emissions standards. And he violently abridged the First Amendment rights of US citizens in ordering the dispersal of a peaceful racial justice protest in Lafayette Square with tear gas.
Most subversive of all, Trump’s judiciary left hand and right hand know very well what the other is doing, and often work in tandem. Barr ordered prosecutors to drop charges against Michael Flynn, and a Trump appointee wrote an appeals court decision backing him up. Barr made false claims about voting by mail to help Trump suppress voting, and the Supreme Court curtailed absentee balloting during a pandemic.
All of this would not be such a glaring problem if it were not for the fact that the judicial branch has never enjoyed such relative power, due to the rot in the other two branches. Congress under Mitch McConnell has become almost entirely incapable of passing legislation, devolving its policymaking power almost entirely onto executive agencies that Trump has packed with a collection of grifters, buffoons, and hacks. Most of Donald Trump’s own major policy initiatives – the wall, the ban on Muslim travel, ending Obamacare – are litigated by the courts. When Justice (then Judge) Sotomayor said that federal appeals courts are where policy is made, she was assailed on the right for advocating judicial activism. She wasn’t; she was describing (and predicting) today’s political reality.
Put it together, and there is little question that the Trump Republican movement is absolutely crushing the war for the judicial branch. So what can Democrats do?
All rescue plans depend on a Biden presidency and Democratic Congressional majorities. The first and most vital step is to “save Democracy first”: enact campaign finance, ethics, and voting reforms through Congress to limit the political manipulations that have allowed an unrepresentative, highly conservative political minority to dominate our government and impose its will on our judicial system.
Second, the Department of Justice should be made an independent agency like the Federal Reserve to sever the link between unethical presidents and future Barr-like henchmen. In that vein, President Biden would do well to name a reformer as Attorney General, someone who will not only exercise independence and uphold high ethical standards, but also address whether an evolution in law enforcement and prosecutorial culture is needed at the Department, especially in light of the well-documented need for police reform.
Third, the entire nature of the federal bench needs to be reconsidered. There was a great deal of discussion during the Democratic primary about “packing” the Supreme Court by expanding the number of Justices. But in addition to creating a Defcon 1 level political fight, the case counts above show that what may be needed is a more far-reaching reform that touches all levels.
As a start, Congress should amend current statute to give Supreme Court Justices an 18-year term limit (as 49 of the 50 state courts of last resort have) with staggered vacancies to allow each president two appointments per term. No other Democracy gives judges life tenure, and increasing life expectancy means that judges today serve far longer than the Framers envisioned. Although the Constitution gives federal judges lifetime tenures, there’s nothing in it that prevents them from being rotated from the Supreme Court onto a lower court when their terms end. As future Chief Justice John Roberts wrote in 1983, “setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence.” It would also limit the impact of fleeting opportunities to appoint extreme justices.
Where Democrats holding congressional majorities should consider “packing” – i.e., expanding – the slate of judges is on the courts of appeals. It is hard to undo the raft of Trump appointments. But the impact of the one-time Trump-McConnell judicial heist should be diluted by expanding the pool of judges.
The battles of the last three and a half years have mostly been lost, and much of the damage has been done. The wounds of the war for the third branch of government will linger in this country. But it is not yet over. There is still a chance to turn the tide.