WASHINGTON — Thursday, November 7 was a fateful day for the courts in America.
By an 86-2 margin, the U.S. Senate approved William Nardini to a lifetime appointment on the Second Circuit Court of Appeals — Trump’s 45th appointment of an appeals-court judge. On the same day, the Senate Judiciary Committee approved another judicial nominee of Trump’s, Steven Menashi, an ally of Stephen Miller and Education Secretary Betsy DeVos with a history of inflammatory statements about Islam, LGBT people, and race. Menashi’s nomination now goes to the Senate floor where it appears likely he too will be confirmed to a lifetime position on the Second Circuit. If confirmed, Menashi would fill the seat once held by Thurgood Marshall.
Nardini’s confirmation is a terrifying new milestone for Trump: One out of every four judges at the circuit court level is now a Trump appointee. Here’s another statistic: In less than three years, Trump has appointed 45 appeals-court judges, while President Obama appointed 55 appellate judges in his eight years in office. The explanation for Trump’s success is the same for Obama’s failure to appoint more: Mitch McConnell.
Few politicians in modern history have grasped the importance of stacking the courts with ideological allies — and done more to realize that vision — than McConnell. After taking control of the Senate in 2015, the Kentucky Republican spent the the final years of Obama’s presidency blocking new judicial appointments. The result was Trump entered office with 112 vacancies to fill. At a White House press conference this week touting his success with judicial appointments, Trump described how McConnell urged him to keep his focus on judges. “Of course, I’d like to get some other people confirmed too,” Trump said. “Mitch would say, ‘Well, we got to do the judges first.'”
Trump’s two appointees to the Supreme Court often get most of the attention when it comes to this administration’s judicial track record, but the circuit courts are the “de facto Supreme Court to the vast majority” of Americans, as Sen. Dianne Feinstein (D-Calif.). The Supreme Court hears only 70 or 80 cases a year; the nation’s nine circuit courts hear close to 60,000 cases. “These are the judges that have the greatest influence,” John Malcolm of the Heritage Foundation told me last year. “The buck stops at the courts of appeals.”
And it’s not just that Trump has appointed new judges at a blistering pace. These judges skew young — their average age is less than 50, which means they’ll serve for decades. They’re overwhelmingly white — data kept by the Federal Judicial Center says only six of Trump’s new appellate judges are non-white. Only one is a woman of color.
What also unites so many of these judges is their ideological bent and reading of the Constitution. Many of them subscribe to originalism, the school of thought that the Constitution should be read as it was intended when written some 230 years ago. And many of these judges have ties to the Federalist Society, the conservative legal organization and pipeline for originalist legal thinkers and lawyers. Don McGahn, then the White House counsel, once joked that it was wrong to say Trump’s selection process for new judges had been outsourced to the Federalist Society. “I’ve been a member of the Federalist Society since law school, still am,” he said,”so frankly it seems like it’s been in-sourced.”
Some of these judges — like Steven Menashi — have backgrounds that have turned off even some Senate Republicans. In the past, Menashi accused Human Rights Campaign, the prominent LGBT rights group, of having “incessantly exploited the slaying of Matthew Shepard” while ignoring murders by gay men, criticized Take Back the Night marches drawing attention to sexual assault, and defended a white fraternity’s decision to host a “ghetto night” party, saying the backlash to the party was evidence of “a regime of intimidation in which students are chastised for unpopular speech and expression.”
It’s not only Menashi’s old writings. As the acting general counsel of the Education Department under the leadership of Betsy DeVos, Menashi came up with an illegal plan to use Social Security data to deny student debt relief to those who claimed they were ripped off by shady for-profit colleges, the New York Times reported.
Menashi also reportedly participated in a working group led by Trump adviser Stephen Miller to devise new ways to cut off immigration to the U.S. and demonize those trying to come to this country.
What pissed off both Democrats and Republicans in Senate was Menashi’s refusal to speak openly about any of this in his confirmation hearing. “You’re a really smart guy,” Sen. John Kennedy (R-La.) told Menashi at one point, “but I wish you’d be more forthcoming. This isn’t supposed to be a game.” Kennedy had made noises about voting against Menashi’s confirmation when it reaches the Senate floor, but then reversed course and said he would in fact support Menashi’s confirmation.
If all of his pending judicial nominations are approved, Trump said this week, he will have installed 219 judges on the district, circuit, and Supreme courts. If this fact feels abstract, here’s another way to think about it.
The nation’s courts are one of the rare feel-good stories of the last three years. Time and again, judges across the country have put a halt to the Trump administration’s slapdash and dangerous agenda. “That’s the one branch of federal government that I think is shining in this moment because they are being very vigorous enforcing the law without regard to what the politics of the situation might be,” Mitch Bernard, chief counsel at the Natural Resources Defense Council, told me recently. That’s true of Bush-appointed judges and Obama-appointed judges, Clinton-appointed judges and Reagan-appointed judges.
And to be sure, plenty of Trump-appointed judges have given every indication that they intend to be fair-minded arbiters of the law. But Mitch McConnell isn’t filling the courts with judges whom he hopes will “call balls and strikes,” as the saying goes. He’s appointing judges who will reshape the American judiciary to his liking for generations to come. “McConnell and his Republican colleagues in the Senate are enabling Trump’s reckless agenda and stacking the courts so they roll back civil and human rights for decades to come,” says Lena Zwarensteyn, fair courts campaign director at the Leadership Conference on Civil and Human Rights.