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ABSTRACT
Over a single term in office, President Donald Trump appointed three justices to the U.S. Supreme Court, 54 United States Circuit Court of Appeals judges, and 174 federal District Court judges. Those numbers, particularly the 54 courts of appeals judges, rival those of President Barack Obama’s totals (55) over 8 years in office. However, over that same term, Trump was embroiled in numerous controversies and often frustrated his own administration officials’ efforts to enact and implement policy. Trump’s policy failures stand in stark contrast to his success in reshaping the federal judiciary. This article examines that contradiction and argues that at least part of the reason for his success in nominating federal judges lies in the unique judicial selection strategy he embraced; a strategy for which Senate Majority Leader Mitch McConnell and Federalist Society members within and outside of the administration were essential players. This article presents one of the first analyses of Trump’s appointment process over his full term in office, including his unique use of appointment short lists, the confirmation strategy his administration pursued in tandem with Republican Senate leadership, and the lasting impact Trump’s appointees are likely to have on U.S. law and policy.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 In fact, in a recent survey of presidential historians, Gillian Brockell of The Washington Post reported that he was ranked the fourth worst president. Only Franklin Pierce, Andrew Johnson and James Buchanan were ranked lower.
2 These totals include Trump’s Article III appointments to the U.S. Supreme Court, the regional circuit courts of appeals, including the federal circuit, and the U.S. District Courts.
3 In addition to stating “I am pro-choice in every respect” in an October 24, 1999 interview on NBC’s Meet the Press, he also indicated he would likely support same-sex marriage and gays serving in the military, though he included the caveat that they were not things to which he had given much thought. https://www.nbcnews.com/meet-the-press/video/trump-in-1999-i-am-very-pro-choice-480297539914.
4 Lewis et al. indicate that 11 different Republican senators used their ability to slow nominations in an attempt to extract some concession from the administration.
5 The federal judicial appointment process includes two interdependent stages: the selection stage and the confirmation stage. The selection stage includes the point from a court vacancy until the president formally nominates a candidate for that vacancy. The confirmation stage is the time from the formal nomination to the Senate’s confirmation (or refusal to confirm) the federal judge or justice. There is ample evidence from the literature on judicial appointments that presidents’ actions during the selection stage affect confirmation stage politics. Furthermore, the candidates considered by presidents during selection deliberations is influenced by their uncertainty about the confirmation environment (Black and Owens Citation2016; Nemacheck Citation2007; Rottinghaus and Bergan Citation2011; Rottinghaus and Nicholson Citation2010; Shipan Citation2008). Releasing a Supreme Court short list prior to Trump even being elected to office was a new phenomenon, but it is consistent with the interdependence of these two stages. Given the Federalist Society’s reputation and membership in the White House and among key senators, and then Senate Majority Leader Mitch McConnell’s strong desire to fill the Supreme Court vacancy with a reliably conservative appointee, Trump could be very certain that should he pick a candidate from the Federalist Society short list, his nominee would be confirmed.
6 See the Appendix for President Trump’s evolving short list during his time in office.
7 The conventional wisdom prior to then-candidate Trump’s release of an actual short list would likely have been that providing an actual list of people a candidate might appoint to the Supreme Court would carry the risk of including someone that was not properly vetted or leaving someone off the list that could antagonize would-be supporters, donors, or colleagues. Given Trump’s unusual candidacy, his need to shore up support among the Republican base, and heavily relying on the Federalist Society’s Leonard Leo and future White House Counsel Don McGahn, the potential benefits of publishing a short list outweighed these risks.
8 Reports on interest group involvement in assembling the short list typically indicated that Trump engaged members of the Federalist Society and the Heritage Foundation. However, after the initial reports of Heritage Foundation members’ involvement, no further reporting indicated any input from specific individuals associated with Heritage. It’s possible that the initial reports of the Heritage Foundation were in error, or perhaps it was included by the administration to provide the appearance of a broader coalition providing its expertise.
9 In fact, there are cases in which presidents have used the pending ABA review as part of their nomination strategy. For example, in 1971, Richard Nixon was being pressured to nominate a female candidate for the Supreme Court. He did not want to do so. Nixon decided to include Mildred Lillie, a judge on California’s Court of Appeal for the 2nd District, on a list of names he sent to the ABA. He expected the ABA would give her candidacy a negative rating; if they did so, Nixon planned to take credit for considering appointing a woman for the Supreme Court and blame the ABA’s low rating as the reason he could not do so (Haldeman Citation1994; Nemacheck Citation2007).
10 In fact, deciding on a definitive, single list of candidates for the Supreme Court at any point in a president’s term is quite unusual. Although scholars and commentators often refer to presidents’ short lists for various appointments, such lists are typically post-hoc compilations of the names of candidates seriously considered for the Court. A rare exception is President Gerald Ford’s short list of candidates under consideration for appointment to the Supreme Court to fill the seat left vacant by William O. Douglas’s retirement nearly a year after suffering from a major stroke. On a single sheet of paper Ford had a list of candidates he was considering for the Court with his own handwritten notes on several, including his ranking of the candidates and the addition of three names, all women, apparently included at the insistence of First Lady Betty Ford (Nemacheck Citation2007, 56).
11 Reportedly, four of the six other finalists were also on the first list Trump released (William Pryor, Diane Sykes, Raymond Kethledge, and Don Willett). The other finalist, Amul Thapar, was one of the ten additional names released on September 23 (Liptak Citation2017).
12 In addition to the Federal and Washington DC Circuit courts, there are 11 geographic circuit courts of appeals in the United States. Each of these geographic circuits encompasses at least three states. Over time, senators have recognized a certain portion of the seats in each circuit to belong to a particular state. Thus, when a vacancy arises on the Fourth Circuit Court of Appeals, the senators from Maryland, Virginia, North Carolina, South Carolina, and West Virginia will have an understanding over which state “owns” that seat. It is to those senators that blue slips are delivered.
13 For additional data on opposition Senate treatment of presidents’ nominees, see Wheeler Citation2018.
14 There is virtually no evidence for Trump’s often repeated allegations of election fraud in the 2020 presidential election. By the end of 2020, state and federal courts had thrown out more than 50 cases in which Trump or the Republican Party alleged election fraud. Several of Trump’s attorneys, Rudy Giuliani, Sidney Powell and L. Lin Wood have faced discipline hearings due to their pursuit of meritless cases (Helderman Citation2021).
15 During the campaign, Biden had promised to nominate a Black woman to the Court, a demographic group that was essential to his election.
16 In addition to pressuring individual justices to retire, during the 2020 primary debates, there was also significant and sustained discussion about expanding the number of seats on the Supreme Court so that President Biden could balance the Trump justices with appointees of his own. Democrats introduced a bill in the House in April 2021, but there was not support for it and Speaker of the House Nancy Pelosi quickly stated she would not bring it to the floor (Ferris, Sarah. “Pelosi Dismisses Progressive ‘Court Packing’ Legislation.” Politico. April 15, 2021).
17 See Fulton v. City of Philadelphia, 593 U.S. ___ (2021).
18 Short listed candidates are listed with the position they held at the time their names were added to the president’s short list. In some cases another position is also noted when a change was made prior to the last nomination President Trump made to the Court (since the lists are cumulative). In rare cases a position is noted if a change was made very close to the time the candidate was added to the list (i.e. Noel Francisco left his post as United States Solicitor General effective July 3, 2020, but was added to Trump’s list in September 2020).
Additional information
Notes on contributors
Christine L. Nemacheck
Christine Nemacheck is the Class of 2024 Associate Professor of Government at William & Mary. Her research focuses on judicial selection, judicial federalism, and the role of the courts in a separation-of-powers system. Her research has appeared in a number of political science and law journals. She is the author of Strategic Selection: Presidential Selection of Supreme Court Nominees from Herbert Hoover through George W. Bush. She is also the co-author, along with David Magleby and Paul Light, of Government by the People.