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After back-pedalling on his administration’s policy of separating children of undocumented migrants from their parents at the US-Mexico border, US President Donald Trump toyed with the idea of doing away with due process altogether by simply turning migrants away at the border — no ifs, not buts.

Trump’s opponents initially took comfort in the executive order ending child-parent separations; they saw it as yet more evidence of the chaos and ineptitude of his administration. However, Trump’s frustration with the judicial process is one area he’s had a great deal of success in, and one that will affect the US for potentially years to come. Trump has successfully appointed 42 judges at various levels– the most high profile being Associate Supreme Court justice Neil Gorsuch — since taking office. 

“Trump is well aware of the long-term effects that federal judges have on American politics and society. This is because a judicial appointment is an appointment for life,” Dr. Elizabeth Ingleson, a lecturer at the centre for US studies at Sydney University told Crikey. “The appointments will shape the political landscape for decades afterwards.”

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“Unlike legislation, which can be overturned, once the appointment is made, it’s really only death or illness that tends to bring an end to their tenure.”

The judiciary, and the Supreme Court in particular, has a far more political role in the US than it does in Australia, and judges political views are much more explicitly partisan.

Who is Trump appointing? 

Trump’s choices had a few significant characteristics in common. They are overwhelmingly white (90%) and male (only 20% of the appointments are women). Importantly, said Ingleson, they are mostly young, too: many of his appointments are in their 40s. 

Along similar lines, Trump has continued the George W. Bush era policy of appointing judges associated with The Federalist Society, a conservative/libertarian think tank who believe the meaning of the constitution was set when it was framed in the 18th century. 

“If you follow the news, you could easily think that Trump’s confirmed judges have been a parade of weirdos, semi-qualified kooks and bigots, but the vast majority of those who’ve been flagrantly inappropriate for judicial robes have flamed out and withdrawn themselves from consideration,” Chas Licciardello, host of ABC’s Planet America, told Crikey.

“There are exceptions though: Leonard Grasz is the only one of Trump’s confirmed judges that was rated as “unqualified” by the American Bar Association —  but he somehow still survived confirmation. John Bush is an ex-blogger, who has written a number of extremely antagonistic and concerning pieces, including the pairing of abortion with slavery as the ‘two greatest tragedies in our country.'”

And even though only one confirmed judge has been deemed “unqualified”, Ingleson points out that Trump is nominating “unqualified” judges at an unprecedented rate.

How did this happen?

“Trump has been able to appoint such high numbers of judges so early on in his presidency for two main reasons. First, he entered office with a backlog of judicial appointments because the Republicans in Congress blocked Obama’s appointments, particularly after 2014,” Ingleson told Crikey. “Second, Trump is aided by the fact that the Republicans have control of both houses of Congress.” 

“In 2013, Democrats abolished the filibuster for lower-court nominees, which means now that judges in these courts can be confirmed with a simple majority,” Ingleson continued.  

“It’s worth noting, it’s here we see that the Trump presidency is not so much an outlier but rather very much an extension and product of the Republican agenda. This is about the Republican party as much as it’s about Trump.” 

Licciardello agrees: “It is partly because judges are a high priority for Senate Leader Mitch McConnell … and partly because Trump’s wider agenda has been stymied to the point where there isn’t much the Senate has to do other than push through judicial nominations.”

And what does it mean?

Anyone needing an example need look no further that today’s supreme court ruling in the case of Abbott vs Perez. The conservative judges (including Trump appointee Neil Gorsuch) prevailed, ruling 5-4 in favour of upholding a Republican gerrymandering of legislative districts in Texas which previously had been thrown out by a lower court for diluting the power of black and Hispanic voters.

But Licciardello said Trump’s real legacy on the courts will not be clear until the result of the Senate election this year and whether Trump wins a second term.

“It is super clear that we are moving into a period where because of partisan gridlock, it will be impossible for any party to appoint judges unless they hold the Presidency and the Senate. So no President can have much of an impact in two years,” he said.

“It also means you can get ready for one hell of a caterwaul if Trump loses the Senate this year and finds himself unable to fill any judicial vacancies (including a potential Supreme Court vacancy) over the next two years.”

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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