The NPR Politics Podcast - Trump Remakes Federal Judiciary In His Image

Episode Date: July 1, 2020

In June, the Senate confirmed President Trump's 200th judge to the bench. With a dearth of legislative achievements to point to, reshaping the federal judiciary could be the president's most durable legacy.This episode: White House correspondent Tamara Keith, national justice correspondent Carrie Johnson, and senior political editor and correspondent Ron Elving.Connect:Subscribe to the NPR Politics Podcast here.Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Listen to our playlist, The NPR Politics Daily Workout.Subscribe to the NPR Politics Newsletter.Find and support your local public radio station.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

This is Ashley in Washington, D.C. My sister Meredith lives in England, so we don't know when we'll get to see each other again. While some people find comfort in looking up and seeing the same moon when they are far apart, Meredith and I laugh about how we find comfort in knowing we are both listening to the NPR Politics Podcast. This podcast was recorded at 2.15 on Wednesday, July 1st. Things may have changed by the time you hear it. Here's the show, Meredith. Aw, that's so sweet. Hey there, it's the NPR Politics Podcast. I'm Tamara Keith. I cover the White House. I'm Keri Johnson, National Justice Correspondent. And I'm Ron Elving, Editor Correspondent. So Keri, we are here today because the Trump administration has now confirmed its 200th federal judge.

Once we confirm Judge Wilson today, the Senate will have confirmed 200, 200 of President Trump's nominees to lifetime appointments on the federal bench. Judicial appointments are something that we don't talk about that much on the podcast. But they are incredibly important in terms of a president's legacy. They're so important, Tam. These people serve for life terms. And so they can stay on the bench for 20, 30, sometimes even 40 or more years. This is going to be President Trump's most enduring legacy, most likely, no matter how the election turns out in November. And, you know, when we talk about judges, the People's Court comes to mind or law and order or one of these things. But these judges are making decisions about a lot more than, you know, small criminal cases or civil cases. Yeah, this is not Judge Judy. No offense to Judge

Judy. These people sit on the federal bench, and they rule on cases that matter a lot, things like abortion access, climate change, voting rights, and more. They rule in DC in particular on policy and regulation. They rule on things like the DACA program and immigrants' rights. And in fact, because the Supreme Court actually takes so few cases, fewer than 100, these courts are often the court of last resort. Their decisions matter and they last. You know, it's really true what Kerry is saying about the long-lasting importance of the judiciary. But even in the short run, in a time when the president is largely ruling by executive order and Congress is largely dysfunctional, as it has been for most of the

last decade, pretty much the most important ruling branch of the government a lot of the time on many issues is the judiciary, the federal court system. Yeah. And so President Trump talks about his judges a lot. He inflates the number of federal judges who have been confirmed during his presidency. And he often takes a lot of the credit. But this, in many ways, is not so much the president's achievement as it is the achievement of the Senate Majority Leader, Mitch McConnell. I mean, the Senate plays a huge role here because that's where these judges get confirmed. Yeah, McConnell has been singularly focused on judges. In fact, often he's prioritized confirming judges to lifetime seats on the bench over legislation and some other business, which has really annoyed Democrats. But

McConnell has his eyes on the prize and to him, the prize is judges. In fact, he made a little joke recently saying his motto is no vacancy left behind. You know, you could also say that the president's function here is to appoint, but he wouldn't have these vacancies to fill if it weren't for the work that Mitch McConnell and other Senate Republicans have been doing for a number of years to make sure that the number of Obama vacancies did not ever become actual appointees in many cases, holding up, for example, Merrick Garland when he was nominated to the Supreme Court, but also lots and lots of other people who were either filibustered or ignored. And without those vacancies, you could not possibly have gotten 200 new appointees in just the first three years and some months of this administration. I imagine that conservatives have been very happy. Is this right, Carrie? Unbelievably happy. I spoke this week with Carrie Severino, who was a clerk for conservative Justice

Clarence Thomas on the court. She now runs something called the Judicial Crisis Network, which advocates and pushes for the confirmation of Trump nominees. They're not simply trying to keep their heads down and become the blank slate that may have been the ideal nominee in a prior Republican administration, someone who really has no track record whatsoever. But instead, these nominees are people who were willing to stand up for what they knew was right. In other words, she's saying that President Trump's nominees are a bit bolder than the nominees in the past. And she's very happy about that. Is part of that, though, a function of the Senate is handling judicial confirmations differently so that so that like, you don't have to be a blank slate,

you can be a conservative judge, or you can be a judge that doesn't have to be a blank slate. You can be a conservative judge or you can be a judge that doesn't have a track record or that isn't highly rated and you can still get confirmed. You know, arguably, this is a different environment entirely in which one auditions, to use the word that they don't like to hear used, one auditions to be put on the higher courts by issuing pretty strong opinions and having a very distinct ideological bent. Whereas in the old days, you were supposed to

look as above the fray as possible, as non-ideological, non-partisan as possible, because in part, you had to worry about filibusters. And now, of course, since they wiped out the filibuster for not only judicial appointments, but all the way up to the Supreme Court, now you don't have to worry quite so much about getting votes from the other side of the aisle. And what's more, they don't really do the old blue slip process anymore, whereby you had to have the approval of a senator from the state most affected by that particular federal judgeship. Now, you don't have to have both senators' approval, especially if they're from the other party. So that's just a whole other area of worry that's eliminated.

It's a whole new world. We are going to take a quick break. And when we come back, how Democrats are feeling about all of this and what it might mean for the presidential election. This message comes from NPR sponsor Lightstream. Refinance your high interest credit cards with a credit card consolidation loan from Lightstream. Rates start at 5.95% APR with auto pay and excellent credit. For a special discount, apply at lightstream.com slash NPR politics. Subject to credit approval.

Rates include 0.5% auto pay discount. Terms and conditions apply, and offers are subject to change without notice. Visit Lightstream.com slash NPR Politics for more information. Comedian Nicole Byer doesn't consider herself body positive. She just accepts herself as is. I hate that there's a name for, like, not hating a part of who you are. Do you know what I'm saying? Like, it's insane. Nicole Byer, on her new book,

Very Fat, Very Brave, and How to Love Yourself. Listen to It's Been a Minute from NPR. And we are back. And Carrie, my understanding is that the president has picked a pretty homogeneous bunch of people for the bench demographically.

Yeah, absolutely. I reached out to the Leadership Conference for Civil and Human Rights. They say by their tally, the Trump nominees are nearly 70% white men. Out of the 200 confirmed judges, there are only 28 people of color. And as for the federal appeals courts, that one step below the Supreme Court, one Latina judge. So does the administration see a problem with that? Or I assume not? Well, you know, the president has been up and down about judges. He's mostly pretty happy with the ones he's confirmed. I did speak with allies of the White House. They point out that there is some diversity in terms of backgrounds among the confirmed judges. For instance, Judge Amy Coney Barrett on the Seventh Circuit is the mom of seven children. Judge James Ho on the Fifth Circuit is an immigrant from Taiwan.

And Judge Don Willett, also on the Fifth Circuit, grew up in a trailer park with his single mom. There are also a number of Asian nominees to the appeals courts that the Trump administration has been pushing forward. And some are big favorites of Mitch McConnell, too. You know, we've talked a lot about the Federalist Society and what that is, is a group of lawyers. It started in a couple of law schools, professors and law students who were reacting to what they saw as the leftward drift of the Supreme Court in particular, the courts in general. And over the years, this has become an increasingly powerful group of people because they continue to multiply. They continue to attract talent in the law schools and within the faculties of law schools. And they have largely been able to be the clerks for the Supreme Court and for other federal courts during the period of time that

Republicans were appointing them, the Reagan era and so forth. There have been a lot of new judges that were looking for conservative clerks. But even beyond the periods of time when Republicans were appointing the judges, these clerks were proliferating and they are talented and they have shown a lot of ability to move up in the system. And so the Federalist Society has really become, if you will, the matrix of an all new era of federal judicial thought. Carrie, obviously, if conservatives are very happy about these judges, one would assume that Democrats are very unhappy about these judges.

Yeah. You know, Tam, I spoke with Christopher Kang, who did a vetting for President Obama's appointees. And Chris Kang now works for an organization called Demand Justice that tries to promote interest among Democrats in the importance of the judiciary. This is what he had to say about the Trump judge pick so far. These are far more extreme judges than even President George W. Bush put on the bench, and we're moving in the wrong direction. So Kang thinks that the judiciary is moving, in his view, in the wrong direction, and he's now part of this organization that is soliciting money and spending money, interestingly enough, on the political front in states that could be swing states to try to

energize voters there on judges. I mean, this is a fascinating, long standing thing where Republicans and evangelical voters who are part of the Republican base have been very motivated by judges. In 2016, President Trump, then candidate Trump, had a list of people who he said he would put on the Supreme Court. Leaving that seat open on the court awaiting the presidential vote was part of a strategy to try to juice turnout among conservative Republicans. And in some ways, it is widely seen as being a successful gamble. And now heading into 2020, President Trump is again, I mean, like in terms of what he talks about on the campaign trail, the judges are something he touts regularly as an accomplishment and something, one of the few things he talks about in terms of his second term agenda, that you're going to get more judges is what he says.

And he says he's going to have another list. It's his greatest hit, Tam. And he's going to play it over and over and over, not only to energize his own voters and get out his base, but also to show that he has been effective at something when many other things have kind of gone south for him. Even the big tax reform that was considered the trophy of the first couple of years, has not really been the political winner that the president wanted. It hasn't really endeared him to that many people beyond the people who voted for him in 2016 and people who benefited from it richly because of their particular wealth. So that wasn't a great big winner. And there are obviously other problems with the pandemic and the recession and the racial unrest in the country. And there was the impeachment and there are all kinds of questions about the president's foreign policy. very focused on keeping his promises, and he had this

huge vacant, there were all these vacancies. Is he going to be able to deliver 200 more judges if he gets four more years? 200 might be high, but there are a number of open seats on the lower courts, the district courts. McConnell has prioritized in the Senate confirming those appeals court judges. Now they're beginning to turn to hearings and votes on the district court nominees for the rest of the year. The other thing, Tam, is that political conservatives, as you pointed out earlier, do play a long game. going around in a very gentle way in urging current judges to retire, to create new openings for young people in their 30s and 40s to promote a new era of conservative judges moving forward. And we'll see to what extent that effort is successful. We have seen it work on some of the lower courts. So far, nobody on the Supreme Court is talking about retiring, but conservatives are trying. They really are. All right, that is it for today. But there's

something really exciting I want to tell you about, which is that we have a new way for you to add this podcast to your daily routine. We launched a workout playlist on Spotify featuring our favorite workout songs. It will be updated daily with the NPR Politics Podcast. So you like listen to the podcast while you're running or pumping weights. And then it just goes right into a playlist of awesome songs that we have picked and curated. And those songs will keep them fresh to keep you motivated. You can find a link to the Spotify playlist in the description of this episode or search Spotify for the NPR Politics Daily Workout. All right. I'm Tamara Keith.

I cover the White House. I'm Carrie Johnson, national justice correspondent. And I'm Ron Elving, editor correspondent. And thank you for listening to the NPR Politics Podcast.