Thou Shalt Not Judge: Donald Trump's Judicial Legacy

Much has been written concerning the impact the political ascension of President Donald Trump has had on the erosion of civility in modern politics, the intensification and centering of white nationalist ideologies, as well as incumbent xenophobia and the racial virulence it foments. This is in addition to the perpetual stream of scandals emanating from the White House has filled pages of news publications and broadcasts over the past two years. One of the understated impacts of the Trump administration is its relentless upheaval of federal courts, and the implications it has on protecting constitutional rights and liberties.

The Trump Administration’s appointment of federal judges has exceeded the pace of the last five presidents, rapidly and radically transforming the federal judiciary. President Trump has appointed more than 25 percent of the judges seated on five of the country’s 12 circuit courts; as of this writing, the Senate has confirmed 90 federal judges, which come with lifetime appointments. This string of appointments includes the confirmation of Justices Neil Gorsuch and Brett Kavanaugh to the United States Supreme Court. The Senate has confirmed Allison Jones Rushing, who has ties to anti-LGBT groups, to the Fourth Circuit Court of Appeals and Neomi Jehangir Rao, who served as Trump's "czar" overseeing regulatory rollbacks, to the United States Circuit Court of the District of Columbia. Reportedly, over the objections of Senators Diane Feinstein and Kamala Harris, President Trump has considered the appointment of Daniel Collins and Kenneth Lee to fill two vacancies on California’s 9th Circuit Court. These judges will shape the course of American jurisprudence for decades.

Undoubtedly, these appointments will yield profound implications for Civil Rights, environmental protections, and governmental regulations for generations beyond the term of Trump’s presidency. The Trump administration has flagrantly engaged in rhetoric and policies that marginalize and disenfranchise large swaths of the population; appointing judges that presumably share his worldview could unravel decades of Civil Rights won in federal courts.

The protection of the law, and the security of its guarantees, has long been the linchpin of shielding our society’s most vulnerable and disenfranchised members from assaults on their rights and privileges. Petitioning the courts for a redress of grievances is a foundational constitutional right, and was a key strategy the National Association for the Advancement of Colored People (NAACP)'s Legal Defense Fund deployed to end Jim Crow. The invigorated, protracted struggle to upend “separate but equal” that culminated in Brown v. Board of Education of Topeka Kansas established the foundation of Civil Rights advocacy. Since that time, the courts have become a place of last resort for endeavors to stymie voter suppression, uproot police brutality, and preserve the environment, in addition to every other meaningful cause for societal progress. Selecting who hears these vital arguments, or similar ones in the future, could have a profound impact on these efforts.

Consequently, the process of court stacking is one of many ways structural imbalances and disenfranchisement persists for generations.

The president has continued nominating a record number of federal judges, even in instances where said appointees have a demonstrated lack of qualifications. Moreover, President Trump’s judicial nominations lack any sort of meaningful diversity, especially as it relates to prior legal experience. Avowed political ideology is all that matters. This became painfully clear during the confirmation hearing for US District nominee Matthew Spencer Petersen. Petersen, a Commissioner for the Federal Election Commission, has never tried a case to verdict, never led a deposition, and is admittedly not readily familiar with the federal rules of civil procedure. Yet, he was nominated for one of our nation’s most prestigious judicial positions. Had he been confirmed, Petersen would have impacted thousands of litigants’ ability to seek and receive legal remedy.

Federal judgeships traditionally represent the capstone of an exemplary legal career and former Presidents have certainly nominated men and women they believed shared their view of the law. However, few nominations elucidated such a brazen disregard for qualifications. Review the pedigree of any nonwhite federal judge in our nation’s history, and you’ll find that each had sterling credentials. Yet, this is what the Trump administration offers an example of “the best people.”

The Trump administration routinely promised to hire, nominate, or otherwise appoint “the best people” to hold positions in his Cabinet. While he served as Press Secretary, Sean Spicer defended the administration's lack of diversity by using a similar refrain. Nevertheless, Trump has almost invariably nominated, hired, and appointed people who are woefully unqualified for the positions he desires them to fill, or have records of discriminatory animus like his nomination of judges Rushing and Rao. These appointments, along with scores of others, are another means by which the Trump administration communicated its bigotry.

If federal judges and Supreme Court justices were the independent arbiters of justice our judicial system purports them to be, it would matter little who appointed them to such positions, so long as the appointee proved qualified. Nevertheless, presidential election cycles are fraught with handwringing over who our nation elects to serve as head of state, because our nation’s chief executive has judicial appointment authority. The presumption is the president will appoint judges who share his view of the law, and those judges will render holdings accordingly. For example, many of his Evangelical supporters widely consider President Trump’s prolific appointment of conservative judges, most of whom flow from the Federalist Society’s pipeline of future judges, his “most enduring legacy and a central reason he won the White House.”

The law is one of our most powerful tools to protect our society’s most vulnerable citizens, and the Trump administration seems intent of dulling the effectiveness of this tool for marginalized populations so that it might sharpen the mechanisms of injustice.

About the Author

Timothy Welbeck is a Civil Rights attorney, professor of African American Studies, author, and hip-hop artist. He teaches an array of courses at Temple University and Thomas Jefferson University that examine interconnected themes in the African American experience, law, and politics. Timothy's work has appeared in various media outlets, such as the BBC Radio 4, The Philadelphia Inquirer, NPR, The Huffington Post, REVOLT TV, et al.