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A Look At Trump's Impact On The Circuit Courts


As we begin 2020, it is worth noting that 1 in 4 circuit court judges is a Trump appointee. To give an idea of just how swift the confirmation pace has been, I'll note that in one single day last month, as the Senate prepared to leave for the holidays, it confirmed 12 judges. That brings the number today to 187 lifetime judges appointed by this administration. Here to talk about the impact of this is Melissa Murray. She's a law professor at NYU and co-host of Strict Scrutiny, which is a podcast about federal courts and legal culture. Melissa Murray, welcome.

MELISSA MURRAY: Thanks for having me.

KELLY: So to establish for the nonlawyers and judges out there, including me, we are talking circuit court judges. So we're talking lower court, but they're appointed for life, and they're deciding all kinds of cases, right?

MURRAY: And not just circuit court judges, also federal district court. So these are the lower federal courts which include trial courts, intermediate courts of appeals and then, of course, the Supreme Court.

KELLY: And give me some context for this number - that it's now 1 in 4 - 25% - Trump appointees. How does that compare to past presidents?

MURRAY: Well, at this point in his tenure as president, President Barack Obama hadn't appointed nearly as many judges as President Trump has. And that was the case also for President Clinton and President Bush. So this has been the most successful administration in getting through its nominees and having them successfully appointed.

KELLY: So what has changed for President Trump? Have there been an unusual number of vacancies? Or what's going on?

MURRAY: A lot of things have changed. Certainly, there have been more vacancies at the lower federal courts and at the Supreme Court, which presents more opportunities for the president. But the most fundamental change has been in the rules in the Senate. The Obama administration really struggled with getting their appointees out of committee and onto the floor for a full vote. And so because they were having so much trouble, in 2013, Harry Reid invoked the nuclear option, changing the Senate cloture rules and eliminating the filibuster rule for lower federal court judges. That made it easier for the Obama administration to get through some of its nominees.

What it means as a practical matter in this moment is that you don't need to court any of these senators from the other side in order to get a supermajority. All you need is a simple majority to get out of committee and onto the Senate floor for a simple majority vote to appoint. And that means that not only is it easier for the president to get his nominees approved. It also means that he doesn't need to appoint more moderate candidates. He can actually appoint someone who is ideologically extreme because his party controls the committee and also controls the Senate and will be able to get those nominees through with a simple majority vote.

KELLY: Does anything stand out to you about this large, new class of judges?

MURRAY: Well, they are incredibly young. So that is something that's really interesting.

KELLY: They'll be around for a long time is what you're saying.

MURRAY: They will be around for a long time. Federal judges enjoy life tenure. And typically, it was not unusual in the past to see the standard nominee, whether from the Republicans or the Democrats to be someone who was in her 50s, maybe her 60s, having been an experienced lawyer for some time. Now we're seeing a lot younger profile. Some of them have graduated from law school only in the last decade. And that is highly, highly unusual.

KELLY: I wonder, what are the long-term implications of having such a large number of judges that have been appointed by one president, one administration?

MURRAY: Well, we've often had presidents who've been successful in appointing a cadre of judges to the bench. So Jimmy Carter doesn't get a lot of credit for this, but he was very successful in appointing women and people of color to the federal bench and completely transforming the bench in the 1970s. So President Trump will also go down as someone who has had perhaps his most important legacy be the composition of the federal judiciary. And part of that is because of the old Senate rules and the requirements to nominate and appoint judges. You had more moderate candidates in order to get votes from the other party. Now without those kinds of constraints, you're going to see more ideologically extreme nominees. And indeed, that's what we have been seeing.

KELLY: You mentioned Jimmy Carter's legacy of appointing more women, more people of color. What is President Trump's record on that front?

MURRAY: Well, I mean, he has been almost the antithesis of Jimmy Carter on this front. So there have been predictably very few people of color. There are not a lot of women being appointed. There have been some. But the profile has been largely male, predominantly white.

KELLY: That is Melissa Murray, co-host of the podcast Strict Scrutiny. Melissa Murray, thank you.

MURRAY: Thanks for having me. Transcript provided by NPR, Copyright NPR.