Trump's takeover of the federal courts is likely to be short-lived: Columnist

A key reason Republicans have stuck with President Donald Trump through scandal after scandal is that he has appointed dozens of right-wing judges to the federal bench.

The president has appointed more judges in a single term than any president since Jimmy Carter, and completely filled all vacancies on appellate courts for the first time in decades. Many of these judges hold extreme political views, and most of them are very young, so they can stay on the bench for decades. Republicans hope this domination of the courts will let them set policy for years after they are voted out.

However, writing for The Washington Post on Tuesday, Bill Scher argued the GOP's decision to gamble their principles for a conservative federal bench was probably a bad deal — because they likely won't control the courts for as long as they think.

"Of Trump’s 200 judges, 198 are on lower courts: 143 district-level judges, two international trade judges and 53 appellate-level judges. Another 44 lower-court nominees are in the pipeline, though there’s no guarantee all will get confirmed. But for the sake of comparisons, let’s assume Trump tally ends up at 242 lower-court judges," wrote Scher. If Trump loses in 2020, which he currently seems on track to do, "he will nevertheless be outdone on judicial confirmations by his most immediate predecessors: Barack Obama got 327 lower-court judges, George W. Bush 326 and Bill Clinton 376."

Moreover, he wrote, "The Democrats may well get their turn starting in January. Among the appellate court judges, 77 will be 65 years of age by the end of this year. Most of these older judges will be eligible to move to 'senior' status, in which the judge takes on a reduced workload while creating a full-time vacancy. The routine churn of judicial vacancies will not end with the Trump presidency."

Even Trump's two Supreme Court appointments didn't make as big a difference as Republicans were hoping, argued Scher: "This supposedly die-hard conservative Supreme Court has blocked Trump from canceling Obama’s Deferred Action for Childhood Arrivals, thwarted Trump’s attempt to put a citizenship question in the U.S. Census, sided against the Trump administration’s attempt to constrain the application of the Clean Water Act, eased the ability of consumers to pursue antitrust claims against major corporations and expanded the workplace rights of transgender employees. And on Monday, the court refused to let states weaken Roe v. Wade with debilitating restrictions on abortion clinics. In some of these cases, one of Trump’s appointees joined the court’s liberals in the majority."

"Of course, conservative judges will still rule conservatively most of the time," wrote Scher. However, "The paradoxical combination of lifetime judicial appointments and the perennially shifting political winds make it difficult for one political faction to place a permanent hammerlock on our courts. There are structural limits to how successful any attempt can be at manufacturing a judicial sea change."

"If Democrats win big in 2020, they will again get their turn at shaping the judiciary," Scher concluded. "And Republicans will have to ask if they paid too steep a price."

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