Mr. Trump has an unprecedented opportunity to reshape the U.S. federal court system, and he’s working diligently on it. Mr. Trump could potentially appoint hundreds of conservative judges into lifetime appointments on the federal bench. The profile of his nominees is prophetically significant. Also, the pace at which the Republican-controlled Senate is confirming them has conservatives cheering.
“I’ve generally not been at all shy of being critical of this administration,” says Jonathan Adler, a professor at Case Western Reserve University School of Law in Cleveland, “but when you look at this, they are steaming ahead with putting forward slates of highly-qualified nominees on a regular basis.”
As of September 28, Mr. Trump has nominated 58 people for federal judgeships, and the Senate had confirmed seven of them, far outpacing his immediate predecessors. While some of the nominees have raised concerns because of past controversies – including one who described transgender children as part of “Satan’s plan,” and another who called Justice Anthony Kennedy a “judicial prostitute” – what is winning Trump plaudits on the right is their conservative credentials. Specifically, an adherence to originalism, a largely conservative philosophy defined by interpreting the US Constitution as the Framers would have intended.
In other words, they all fit the mold of Neil Gorsuch, a committed originalist, whose confirmation to the Supreme Court in April is arguably Trump’s greatest achievement to date. Indeed, the “Trump effect” on American law will begin to be felt in earnest during the high court’s current term. With Justice Gorsuch, a 5-to-4 conservative majority has been restored on the court after the death of Justice Antonin Scalia, and this term is likely to deliver conservatives some big wins on issues from religious freedom and partisan gerrymandering to public sector unions and the travel ban. When describing the new term, Justice Ruth Bader Ginsburg predicted it would be “monumental.”
But with his lower court appointments, legal scholars say, Trump has the ability to shape American jurisprudence in an even broader and more durable way. Thanks in part to obstruction by Senate Republicans – in addition to Merrick Garland, former-President Barack Obama’s pick to replace Justice Scalia, Senate Republicans also blocked a host of lower court nominees.
Mr. Trump entered office with twice as many judicial vacancies as Obama. Combining those with older judges who could accept “senior status,” a kind of semi-retirement, Trump could appoint more federal judges than any president in the past four decades. While these appointments may not attract as much attention as a Supreme Court pick, they are arguably more important. Collectively, they hear tens of thousands of cases each year, while the Supreme Court hears less than a hundred.
“Relatively few of their decisions are reviewed on appeal. For most litigants in the federal system the federal trial judge is the judge,” says Judith Resnik, a professor at Yale Law School in New Haven, Conn. “Their powers are enormous.” Federal trial judges, she adds, “make findings of fact and conclusions of law, they control the timing and the pace of litigation, and their wisdom and their kindness are essential to the well-functioning judiciary.”
Only one of 11 federal appeals courts had a Democratic majority when Mr. Obama entered office; and when he left nine of them did. One of those courts, the Fourth Circuit, made a decisive ruling against Trump’s travel ban.
The lower federal courts, particularly appeals courts, are also an increasingly popular pool from which to draw Supreme Court nominees. For decades, conservative groups such as the Federalist Society have been building up a network of legal scholars and jurists committed to originalism. With a membership upward of 70,000 attorneys and law students, the organization gained a reputation as a “conservative pipeline” to the high court.
The nominees so far “are all highly qualified, highly credentialed … committed conservatives,” says Elizabeth Slattery, a legal fellow at the Heritage Foundation in Washington. “It’s always hard to tell what a nominee’s going to be like once they’re confirmed,” she adds. “But I can tell you from the nominees President Trump has made so far that many of them are cut from the same cloth as Neil Gorsuch, Clarence Thomas, and Antonin Scalia.”
Unlike the George W. Bush administration, the Trump administration seems to be looking to nominate not just conservatives, but originalists specifically, says Ilya Shapiro, a senior fellow at the libertarian Cato Institute. “They don’t want to just avoid [nominees] moving to the left in office, but also want to avoid the John Roberts scenario… who is perhaps too judicially restrained,” he adds. “There’s definitely been an effort to identify people who are seriously committed to doctrines and modes of analysis rather than just being seen as conservatives or Republicans.”
In the eyes of critics, however, many of Trump’s nominees are too extreme to be worthy of confirmation. “There’s thousands of eminently qualified Republican lawyers who would be outstanding judges. That’s not who this president is nominating,” says Dan Goldberg, legal director of the liberal Alliance for Justice. “Instead he seems to be seeking out the most extreme, most polarizing, most ideologically conservative jurists possible. Whether our civil rights laws are properly enforced, worker protection [laws], protections for the environment, protections for consumers, protections for investors,” he adds, “much of this will be decided by the lower court judges the president is putting in place.”
U.S. Federal judges will certainly play a role in the end-time conditions. They will have a lot to say about how worship laws, as predicted in Revelation 13 will be implemented and enforced (see Daniel 2:3).
“While men are sleeping, Satan is actively arranging matters so that the Lord’s people may not have mercy or justice.” Testimonies for the Church, Vol. 5, page 452
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