President Trump is making the federal courts conservative. The effect could last for several decades.
With the flood of his judicial appointments approved by the Senate and capped by the confirmation of Brett Kavanaugh to the Supreme Court, this view is widely accepted and feared by alarmed opponents. For them, a “conservative” court means judges sustaining Trump’s partisan views.
But there is a problem with this potentially inflated fear. There is a difference between “conservative” and “partisan.” This week, Supreme Court Chief Justice John Roberts rebuked Trump for claiming that a judge and an appeals court are partisan.
Last week, two federal courts – U.S. District Courts with judges appointed by Trump and confirmed by Sen. Mitch McConnell’s Republican Senate – showed that the panic may be exaggerated.
A federal judge in Bangor ruled that GOP Rep. Bruce Poliquin had not made the case that ranked choice voting is unconstitutional. The decision effectively meant that Democrat Jared Golden would take Poliquin’s House seat. The ruling was grounded in law and was neither partisan nor conservative.
A federal judge in Washington, D.C. ruled that Trump could not simply toss a CNN reporter out of the White House, even if he asked obnoxious questions. The reporter was entitled to due process before losing his entry badge. The president could not discriminate among reporters, once newspersons had been given access.
Both judges made their decisions based on the Constitution, not in favor of the president and party who had placed them on the bench.
The concern about a conservative court focuses on a handful of critically important issues that the court has already decided – abortion, same-sex marriage, the Affordable Care Act, and state voter control of congressional redistricting. Will the new judges reverse these decisions?
A lower federal court, no matter how conservative the judges, cannot reverse a standing Supreme Court decision. Only the Supreme Court or, in many cases, Congress can do that.
Clearly, a good argument can be made for Congress to legislate and not leave it up to the Supreme Court, as it did with abortion. But experience shows the Supreme Court, even with an ideological majority one way or the other, can produce surprising decisions.
The Affordable Care Act was not overturned when Roberts voted to approve it, contrary to expectations. The two Trump appointees to the Supreme Court may not vote as expected or exactly the same. It is early in their tenure, but their records show they can think for themselves.
Much depends on how a case gets to the federal courts. In the past, conservative state attorneys-general brought cases attacking Obama policies. They raised issues that the federal courts were forced to address.
Now, the tables have turned. Liberal state AGs are launching cases against Trump policies and have begun to achieve success. In effect, they are forcing federal courts to address their concerns.
The vast majority of cases coming before the federal courts do not lend themselves to a conservative-liberal split. Some are technical and have limited scope. But others deal with interpreting the laws, not constitutional questions.
If there is an ongoing ideological split among Supreme Court justices, it may be about the extent of federal powers. Congress could settle most such questions by making the decisions itself.
Kavanaugh previously served on the same court as Merrick Garland. President Obama had nominated Garland to the Supreme Court, but McConnell made sure he was denied any hearing by the GOP Senate. On the same Appeals Court, Kavanaugh and Garland agreed more than 90 percent of the time.
Their agreement showed, above all, that most issues do not rise to the level of ideological controversy. Republicans used their agreement to show that Kavanaugh was not a dangerous conservative, though McConnell apparently found that Garland was a dangerous liberal.
Blame for the concerns about the ideological split on the Court belongs to McConnell. For him, judicial confirmations are partisan issues, even if the justices do not see themselves as partisan. McConnell bears major responsibility for the Senate’s deep political divide.
Trump wants to make sure he pleases conservatives with his judicial appointments. Whatever his partisan views, he ends up installing qualified judges.
The Federalist Society, a serious, conservative group, suggested Kavanaugh, who was also found to be “well qualified” by the politically neutral American Bar Association. Relying on it, Trump has produced more competent judicial nominees than earlier GOP presidents, including Richard Nixon and both Bushes.
Before assuming the worst about the new appointees, critics should probably be as fair-minded as they want judges to be.