Zero of his judges at the highest levels ― on the nation’s appeals courts and the Supreme Court ― have been Black. And it’s the first time in four decades that there isn’t a single appeals court vacancy left nationwide.
The president hit the milestone as Republicans voted to put Cory Wilson onto the U.S. Court of Appeals for the 5th Circuit.
Trump will almost definitely brag about this number ― he should! It’s a big part of his legacy. Broken down, he has confirmed two Supreme Court justices, 53 appeals court judges, 143 district court judges and two judges on the U.S. Court of International Trade. These are all Article III judges; they serve for life and can only be removed by impeachment.
Trump has gotten more judges confirmed by this point in his presidency than President Barack Obama (152), President George W. Bush (190) and President Bill Clinton (186). He falls short of President Jimmy Carter, though, who had confirmed 239 judges by this point.
But if you look at the percentage of court seats Trump has filled compared to the total number of judgeships that exist, he’s about in the middle of past presidents. That’s because the number of total judgeships has changed over the years.
“You know, 200 may be a snazzy number,” said Russell Wheeler, a visiting fellow at the Brookings Institution’s Governance Studies Program and president of the Governance Institute, a nonpartisan think tank. “But if you’re trying to weigh Trump’s impact on jurisprudential change, by one measure, it’s obviously significant ― he’s ahead of most of his predecessors on the courts of appeals ― but on the district courts, he’s not ahead of them by any matter of means.”
Here’s a Brookings Institution chart that shows how Trump stacks up with past presidents in terms of the percentage of court seats they had filled by this point. Trump ranks fourth.
There’s more to this than sheer numbers, though.
The White House has worked closely with the Federalist Society, a conservative legal group, and Senate Majority Leader Mitch McConnell (R-Ky.) to funnel members of the organization into appeals court seats. They’ve focused on appeals courts because, while most people pay attention to the Supreme Court, it generally refuses to hear appeals. That means that appeals courts have the final say in more than 99% of the cases they decide. So you can think of appeals courts as mini-Supreme Courts.
Wilson is Trump’s 53rd appeals court judge. For context on how many that is, Obama confirmed 55 appeals court judges in eight years. And what do Trump’s appeals court judges have in common? They are overwhelmingly young, conservative, white men with records of being hostile toward voting rights, women’s reproductive rights and LGBTQ rights.
Of Trump’s 53 appeals court judges, none are Black. Eleven are female. Seven are Asian Pacific American. One is Latino. Thirty-six are white men. (Beyond the appeals courts, if you look at all 200 of Trump’s judges, just nine are Black.)
Wilson is the perfect embodiment of a Trump appeals court judge. He’s a 49-year-old white man who has described the Affordable Care Act as “illegitimate,” said he supports ”the complete and immediate reversal” of Roe v. Wade, and called same-sex marriage “a pander to liberal interest groups” and ”an attempt to cast Republicans as intolerant, uncaring and even bigoted.”
His record on voting rights is particularly relevant amid the national reckoning on racial justice. In a 2011 op-ed, Wilson dismissed the NAACP’s concerns about a proposed Mississippi voter ID law as “poppycock.” He ripped the Justice Department in 2013 for sending election observers to the state, which has a long history of voter suppression and intimidation, and instead suggested federal officials go after rare cases of “voter fraud.”
He similarly dismissed the Obama administration’s concerns about voter suppression in a 2012 op-ed: “The Rachel Maddows of the media world have joined the chorus of ‘voter suppression’ right on cue from Team Obama. This is as phony as the ‘war on women.’” He also directly attacked Obama, calling him “King Barack,” “petty and small” and “a fit-throwing teenager.”
Organizations including the NAACP strongly opposed Wilson, who will now oversee Mississippi, Louisiana and Texas on the 5th Circuit, which presides over the highest percentage of people of color in the country. But every Senate Republican except for one, Susan Collins of Maine, voted to confirm him. Every Democrat voted no.
Progressive groups have increasingly made judicial nominations a central reason why they must flip the Senate back to Democratic control.
“Trump has prioritized ideological extremism over all else, and the result is the least diverse group of judges in decades, further undermining the legitimacy of our courts,” said Chris King, chief counsel of Demand Justice, a progressive judicial advocacy group. “To repair this damage, when Democrats are in power, they must not only prioritize our courts like never before, they must take affirmative steps, such as expanding the number of district and circuit court seats, to restore balance and legitimacy.”
Trump still has several months to fill more court vacancies, and McConnell will definitely make this a top priority ― especially in the lame duck, if Trump loses reelection in November. But at the moment, there are no more appeals court seats to fill. McConnell has responded by personally reaching out to Republican-appointed judges and encouraging them to retire so he and Trump can fill their seats this year.
Even if Trump doesn’t confirm any more judges, his 53 relatively young appeals court judges will have an impact on jurisprudence, though it will be modest, speculated Wheeler. They’ll be deciding cases on panels with other judges appointed by Obama, Bush, Clinton and others.
In the meantime, Democrat-appointed judges itching to retire may be hanging onto their seats until November to see if Joe Biden wins.
“If Trump somehow gets reelected ― boy, Katy bar the door ― I have to think there are a lot of Democratic court appointees who are eligible for senior status … who have been holding off in the hopes that Biden will appoint their successor, not Trump,” he said. “But you reach a point where you can’t go on.”
If Biden does win, Wheeler added, “The flood gates may open and [Democrats] would get a lot more vacancies.”