How Trump Could Make the Judiciary Great Again

Even if, God forbid, President Trump fails to fulfill his signature campaign promise of building a wall, he, like many other Presidents, will leave his biggest legacy in the judiciary.  The lifetime appointments he will make to the judiciary will continue to have a lasting effect on public policy in the United States long after his tenure as Commander-in-Chief expires.  Let’s take a look at the makeup of the Federal judiciary right now and how the makeup will change when President Trump fills the many vacant seats on the United States courts.

 

We all must stop pretending that the judicial branch is not a political branch.  Anyone who believes that judges rely solely on the Constitution and not their own personal policy preferences when making their decisions lives in a fantasy world.  Both political parties realize the immense power of the Supreme Court and the Federal courts as a whole.  Democratic Presidents have done a very good job of appointing “Living Constitutionalists” to the bench while Republican Presidents have done a less impressive job of appointing originalists to the bench.  “Living Constitutionalists” believe that constitutional interpretation must evolve as the society evolves while originalists see the Constitution as a binding contract whose principles can be changed only by constitutional amendment, not through judicial interpretation.  Sadly, many “living constitutionalists” prefer to rely on international law rather than the Constitution when making their decisions.        

 

For decades, liberals have effectively used the Courts to advance their agenda when the people rejected it at the ballot box.  In 2008, voters in ultra-liberal California voted in favor of Proposition 8, a Constitutional Amendment defining marriage as a union between one man and one woman, an idea which even progressive hero Barack Obama claimed to support at the time.  It did not take long before a Federal judge in San Francisco, nicknamed San Fran Psycho by Michael Savage after the Kate Steinle verdict, struck down Proposition 8, arguing “no compelling state interest justifies denying same-sex couples the fundamental right to marry.” (Italics added for emphasis.)     Liberals continued their tirade against State Constitutional Amendments banning same-sex marriage until five of the nine Supreme Court justices decided that bans against same-sex marriage violated the Equal Protection Clause of the Fourteenth Amendment.  More than a decade earlier, Californians voted in favor of Proposition 187, which sought to prevent illegal immigrants from accessing government benefits, including subsidized health care and public education.  Liberals found a Jimmy Carter-appointed judge happy to declare the law unconstitutional.  Republican Governor Pete Wilson, who won re-election in 1994 after supporting Prop 187, had appealed the decision but Democrat Gray Davis dropped the appeal after his tenure as Governor began in 1999.     

 

Many intellectuals spanning the full ideological spectrum of the conservative movement recognize that liberals have used the judiciary as a weapon to advance the “revolution.”  As Charles Krauthammer pointed out, “They (liberals) decided that they had to have the Court because liberalism is not a majority opinion in the country…And if you wanted to continue to dominate the way liberals had, you weren’t going to do it through the Congress or the Presidency, where the people decide.  The only way to do it would be to control the Courts.”  Ann Coulter put it this way, “liberals see the Supreme Court as their backup legislature, giving them all the laws Democrats can’t pass themselves because they’d be voted out of office if they did.”  For more information on how liberal judicial activists undermine American democracy, consult Mark Levin’s Men in Black: How the Supreme Court is Destroying America. 

 

While the Democrats may hold a minority of seats in state legislatures, governorships and both houses of the United States Congress, they still control a majority of Federal judgeships.  With President Trump in office, that may soon change. Of the 179 authorized judgeships on the appellate courts, Democratic-appointed judges hold 89 while Republican-appointed judges hold 74.  16 seats remain vacant.  Should President Trump successfully fill all vacancies, Republican Presidents will have appointed a narrow majority of appellate judges.  Democratic Presidents appointed 338 of the Federal judges serving in District Courts while Republican Presidents appointed just 222.  If President Trump got to fill all 123 vacancies at the district court level, that would give Republican-appointed judges a slight lead in the number of judgeships.  On the United States Court of International Trade, Republicans appointed just two of the judges while Democrats appointed the remaining five.  Two vacancies have yet to be filled.  Republican Presidents have appointed the majority of the judges on The United States Court of Federal Claims, which has 7 Republican-appointed judges, 3 Democrat-appointed judges and 6 vacancies.    

 

 

This might sound kind of strange but President Trump should thank Harry Reid.  Reid made it so that nominees to the lower courts would only require a simple majority for confirmation.  Mitch McConnell picked up where Harry Reid left off and changed the rules allowing simple majorities for Supreme Court nominees. If Democrats could still use the filibuster against Trump’s judicial nominees, they most certainly would.  Just remember what a hard time they gave President George W. Bush’s judicial nominees.  So far, President Trump has appointed sixteen judges to the Federal Courts, including Supreme Court Justice Neil Gorsuch.  Currently, 44 of his judicial nominees await Senate action.  The President has yet to nominate people to fill the 100 remaining vacancies.  Check out this complete list of all the vacancies in the Federal judiciary. 

 

 

Regardless of how you may feel about the effectiveness of the Republican Senate, the battle for the judiciary highlights the importance of keeping the upper chamber in Republican hands.  Should Democrats ever regain control of the Senate, they will do their best to make sure very few originalists nominated by President Trump ever make it to the bench.  President Trump may end up picking more Supreme Court justices in the future, as two of the justices have already surpassed the age of eighty while Justice Stephen Breyer, a reliable living Constitutionalist, will turn 80 next year.  Originalist hero Clarence Thomas will turn 70 next year.  Many Americans who saw President Trump as vulgar and unfit for the Presidency still cast their ballots for him anyway because they did not want Hillary picking Supreme Court justices.        

 

Even if President Trump successfully replaces judicial activists with originalists and Republicans continue to maintain their majorities in both chambers on Capitol Hill, the GOP will still not have complete control over the Federal government.  The permanent bureaucracy, also known as the deep state, will likely remain a thorn in the President’s side for the entire duration of his Presidency.  Many in the permanent bureaucracy seem to have a desire to undermine the United States’ national sovereignty in favor of supranational organizations such as the UN. The deep state has already done everything in its power to damage the Trump Administration, which has made putting America First a top priority, most notably by leaking classified documents to the press.  The existence of the deep state as well as activist judges proves that politics has infiltrated every aspect of our government, even the parts that the founders intended to be apolitical.  The James Comey debacle proved the politicization of the FBI and the IRS’s targeting of conservative groups proved that the Federal government sought to withhold tax exempt status from organizations with opposing political views.  No wonder America’s trust in its institutions has reached record lows.         

 

No matter what happens throughout the rest of the Trump Presidency, which will hopefully continue through January 20, 2025, his appointment of originalist judges will certainly go down as one of the bright spots.  Whoever controls the judiciary has the upper hand in the Culture War.  By making the judiciary great again, President Trump could pave the way for future conservative victories in the never-ending culture war.