Trump was an illegitimate occupant of the White House, courtesy of Vladimir Putin. So what does that make the judges Trump nominated? On the one hand, they were nominated by an illegitimate “president.” On the other hand, they were confirmed by the Senate. I’m still grappling with the question. But in the case of Aileen Cannon, she should have bender been confirmed and should have been impeached months ago.
That’s the extremist crackpot down in Florida who Trump nominated and then managed to game the system so that she would handle one of his treason cases. Last week a panel from the Appeals Court threw out her absurd Trump-overly friendly decision. Two of the three judges on that panel were also nominated by Trump. Unlike Cannon, they have a sense of judicial ethics and an appreciation for the concept of justice. On Friday, reporting for the NY Times, Charlie Savage and Alan Feuer wrote about the “scathing decision” that pitted one Trump appointee against two others, Andrew Brasher and Britt Grant, who ruled Cannon “had greatly overstepped her authority in getting involved.”
The disagreement cast into sharp relief the complexity of Trump’s outsize imprint on the judiciary for a one-term president. While most of his picks clearly lean conservative, their rulings have shown they are not all inclined to do whatever is expedient for Trump or the Republican Party.
“There is a tendency on the part of some folks to wave their hands at quote, Trump judges, unquote,” said Stephen Vladeck, a law professor at the University of Texas. But, he argued, there are two types of appointees.
One category, Professor Vladeck went on, consists of “old-school, legal establishment types” who are ideologically conservative but would probably also have been appointed by any Republican president. Only some, he said, fall into a more radical group, sometimes seeming to lack a judicial philosophy “other than just ‘rule for the Republicans.’”
As president, Trump often referred to judges in personal terms, telling evangelical leaders they could expect good outcomes from “my judges” and bashing a judge appointed by his predecessor who had ruled against one of his border policies as an “Obama judge.”
In 2018, Chief Justice John Roberts took issue with that phrase, telling the Associated Press, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”
In fact, Trump’s judicial appointees did not defer to him after the 2020 presidential campaign, when he and his supporters filed a barrage of lawsuits claiming the election had been marred by fraud. Nearly all of the suits were unsuccessful; some prompted blistering decisions from judges Trump had put on the bench.
“Voters, not lawyers, choose the president,” one of Trump’s appointees, Judge Stephanos Bibas, wrote on behalf of a federal appeals court in Philadelphia. “Ballots, not briefs, decide elections.”
The Supreme Court— where three of the nine justices were appointed by Trump— has also dealt him a series of setbacks. For instance, the court has declined to block the release of his White House records concerning the Jan. 6, 2021, attack on the Capitol or to prevent a House committee from obtaining his tax returns.
Last month, after the appeals court panel telegraphed it was likely to rule against him and the Supreme Court refused to comply with his request in the taxes case, Mr. Trump lashed out on social media, fuming about “Republican Judges” who “go ROGUE!” to signal their independence from those who appointed them.
Several other Trump appointees have also invited scrutiny.
In the case concerning the House committee’s request for Trump’s tax returns, the Trump appointee to whom it was assigned in 2019, Judge Trevor McFadden of Federal District Court for the District of Columbia, did not make any ruling for almost two and a half years.
Judge McFadden finally acted in late 2021. While he ultimately agreed that the law was on the House’s side, the delay effectively allowed Mr. Trump to run out the clock on oversight efforts.
The judge’s recent decisions also suggest he bears some sympathy for the hundreds of pro-Trump rioters who are facing charges in connection with the Capitol attack. From the bench, he has often expressed skepticism about sentencing low-level Jan. 6 defendants to time in prison. He is also the only federal judge in Washington to have acquitted one of the rioters on criminal charges.
…Large-scale studies have shows that judges and justices appointed by Republican presidents since Ronald Reagan have been more likely to rule for conservative outcomes— such as favoring corporations over regulators and people claiming discrimination— than those appointed by Democrats or by Republicans before Reagan.
A scholarly analysis published in December 2020 of early decisions by 87 district court judges appointed by Trump found that they were significantly more conservative on matters of civil liberties, civil rights, and economic and labor regulations than previous cohorts of Republican-appointed judges. (In all, Trump appointed 174 such judges, along with 54 appeals court judges.)
Lee Epstein, a University of Southern California law professor, said Trump’s appointees to the appeals courts appeared to be the most conservative group on the bench, according to a preliminary and unpublished analysis of about 25,000 votes by appeals court judges from 1995 and 2020 in cases centered on politically charged topics like civil rights.
Trump appointees voted for a liberal outcome just 22 percent of the time— 12 percentage points below the next most conservative group, those appointed by President George W. Bush. (For Obama appointees, 54 percent of their votes were liberal.) Still, the data for Trump appointees was too small to draw firmer conclusions, she cautioned.
…[P]ursuing an ideological agenda— like overturning abortion rights, as the Supreme Court finally did after Trump ensured a conservative supermajority— and seeking partisan advantage are not always the same thing.
So it is notable that Trump had something of a marriage of convenience with the conservative legal movement and its network, the Federalist Society, from which many of his judicial appointments are drawn. To shore up the support of skeptical right-wing voters after he won the 2016 Republican primary, he essentially made a deal to outsource his legal and judicial selections to them, like his first White House counsel, Donald McGahn.
Trump is hardly a legal scholar and his experience with the judicial system had exclusively been figuring out ways to get around it and evade a lifetime of criminal accountability. Over the weekend, he suggested on his social media platform that the Constitution be suspended or, in his own words, "terminated," so that he could be installed as president again, despite having lost the 2020 election by over 6 million votes (51.3% to 46.8%) and the electoral college 306-232.
