President Donald Trump has had as much impact on the third branch of government in two years as most presidents have in two full terms, and the new Senate opens the door for the second half of his first term to be even more significant than the first half.
The Senate in 2018 confirmed 67 federal judges to lifetime appointments: one Supreme Court justice, 18 judges to the U.S. courts of appeals, and 48 judges to the federal district courts (which is where trials are conducted).
Combined with the 2017 number, this is a phenomenal total of 85 new federal judges: two Supreme Court justices, 30 appellate judges, and 53 trial judges. The total of 30 for the circuit courts of appeals breaks the previous all-time two-year record of 23, marking a historic achievement by President Trump and Senate Republicans.
Many of the issues most important to voters turn on competing views of interpreting the Constitution or federal law, and thus depend on the judicial philosophy of the judges deciding court cases involving those issues.
Regarding immigration, the Supreme Court in Trump v. Hawaii reversed 5-4 the losses from liberal judges over Presidential Proclamation 9645 (the travel ban), after Justice Neil Gorsuch’s confirmation. Similar Supreme Court victories are likely to reverse adverse rulings on DACA and the asylum caravans as well, so long as the White House and congressional Republicans do not give up those fights.
Regarding religious liberty, lower-court losses on the constitutionality of public displays with religious imagery, invocations at public events, and rights of conscience for people of faith both under the Free Speech Clause and the Free Exercise Clause of the First Amendment are widely expected to become Supreme Court victories.
Regarding the Second Amendment, where lower courts have routinely ignored the Supreme Court’s two blockbuster decisions – Heller (2008) and McDonald (2010) – at least a couple circuit courts of appeals now support the original public meaning of the right to bear arms, thanks to originalist judges appointed by President Trump. And with Justice Brett Kavanaugh’s confirmation, experts expect the Supreme Court may now have a majority that will vindicate other basic aspects of that right, such as the fact that it extends beyond the confines of a law-abiding citizen’s home.
Regarding the suffocating reach of the vast federal administrative state, Trump appointees to the lower courts have criticized long-standing doctrines that are foundational to the power of the federal leviathan, and the Supreme Court will hear arguments in early 2019 in Kisor v. Wilkie, over whether to overrule Auer deference, one of the pillars of unaccountable bureaucratic power.
The truth about judicial confirmations over the past two years is this: Conservatives never had a working Senate majority as they confirmed the most constitutionally faithful slate of new judges in many decades. The 52-48 Republican control of the Senate – which became 51-49 after the loss of the Alabama seat to Democrat Sen. Doug Jones – never had 50 completely reliable Republican votes for originalist nominees.
Everyone talked about two moderate Republicans. But in addition to the two moderate women in the Republican caucus, Susan Collins (ME) and Lisa Murkowski (AK), there were several senators who needed to be sold on certain nominees. Three of them are no longer in the Senate as of January 3: Jeff Flake (AZ), Dean Heller (NV), and Bob Corker (TN). Two of those seats were lost to Democrats, so were only partial losses where judges were concerned. The third was replaced by a solid Republican vote for conservative judges – Marsha Blackburn (TN) – which is essentially a plus-one in terms of votes that conservatives need no longer worry about.
As a consequence, the new 53-47 Republican-controlled Senate should almost always be at worst 51-49 on originalist judges. Even when a surprise comes along that costs a vote – such as Sen. Tim Scott (R-SC), who somehow fell for left-wing attacks, opposing two well-respected judicial nominees because of long-discredited allegations of racial insensitivity that even the liberal American Bar Association (ABA) did not see as disqualifying – this new equation allows for Vice President Mike Pence to break 50-50 tie votes to confirm the president’s nominees.
President Trump can now be even bolder on one of his strongest issues. In 2016, 48 percent of voters said judges were very important to their voting choice and an amazing 21 percent said it was their top issue. With almost 100 additional judicial vacancies to fill, the president can more than double his historic success thus far on that campaign promise, and over the next two years can give those voters something to mobilize for in 2020.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.
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