A Conservative Agenda Unleashed on the Federal Courts

“I intend to build such a fiercely conservative record on the court that I will be unconfirmable for any future federal judicial post — and proudly so,” a Republican rival quoted him telling party leaders.

Willett served a dozen years on the Texas bench. But rather than disqualifying him, his record there propelled him to the very job he had deemed beyond reach. President Donald Trump nominated him to a federal appeals court, and Republicans in the Senate narrowly confirmed him on a party-line vote.

As Trump seeks reelection, his rightward overhaul of the federal judiciary — in particular, the highly influential appeals courts — has been invoked as one of his most enduring accomplishments. While individual nominees have drawn scrutiny, The New York Times conducted a deep examination of all 51 new appellate judges to obtain a collective portrait of the Trump-populated bench.

The review shows that the Trump class of appellate judges, much like the president himself, breaks significantly with the norms set by his Democratic and Republican predecessors, Barack Obama and George W. Bush.

The lifetime appointees — who make up more than a quarter of the entire appellate bench — were more openly engaged in causes important to Republicans, such as opposition to same-sex marriage and to government funding for abortion. Two-thirds are white men, and as a group, they are much younger than the Obama and Bush appointees.

Once on the bench, the Trump appointees have stood out from their fellow judges, according to an analysis by The Times of more than 10,000 published decisions and dissents through December.

When ruling on cases, they have been notably more likely than other Republican appointees to disagree with peers selected by Democratic presidents, and more likely to agree with those Republican appointees, suggesting they are more consistently conservative. Among the dozen or so judges that most fit the pattern, The Times found, are three Trump has signaled were on his Supreme Court shortlist.

While the appellate courts favor consensus and disagreement remains relatively rare — there were 125 instances when a Trump appointee wrote the majority opinion or dissent in a split decision — the new judges have ruled on disputed cases across a range of contentious issues, including abortion, immigration, LGBT rights and lobbying requirements, the examination shows.

When Trump took office there were 103 unfilled federal court openings, in addition to a Supreme Court seat, in part because Sen. Mitch McConnell, R-Ky., the majority leader, had refused to proceed with confirming many of Obama’s nominees.

Trump wasted no time in seizing the opportunity. During his first three years in office, with McConnell’s assistance, he was able to name nearly as many appellate judges as Obama had appointed over two terms. So far, Trump has appointed more than 185 federal judges.

According to a tally by the Heritage Foundation, a conservative policy group, Trump’s appointees across the judiciary have drawn three times more “no” votes in the Senate than all confirmed judges in the 20th century combined.

One of Trump’s appellate picks was confirmed only when Vice President Mike Pence broke a 50-50 deadlock, the only time a vice president installed a nominee to the bench. The judge, Jonathan Kobes, had been working on Capitol Hill as an aide to a Republican senator. He was rated unqualified by the American Bar Association.

From Fringe to Mainstream

In his State of the Union address in February, Trump bragged about his judicial appointments, promising, “We have many in the pipeline.” A week later, the Senate approved his 51st nominee to the appeals bench; 41 others now await votes for the lower courts.

In the past, many conservatives have been left disappointed when judges appointed by Republican presidents were seen to have lost their resolve on the bench. Now what matters most with Trump’s appointees, said Josh Blackman, a professor at the South Texas College of Law Houston, is that they come with rock-solid conservative resumes.

“You have to demand a paper trail — no more skeleton nominees,” said Blackman, who advised the presidential campaign of Sen. Ted Cruz of R-Texas, and is a strong supporter of the Trump approach.

One appointee, Kyle Duncan, now an appellate judge in New Orleans, fought to uphold Louisiana’s gay-marriage ban, defended a North Carolina law restricting transgender people from using their preferred bathrooms and represented Hobby Lobby when it sued the federal government over insurance coverage for birth control.

Perhaps most telling, all but eight of the new judges have had ties to the Federalist Society, a legal group that has been central to the White House’s appointment process and ascendant in Republican circles in recent years.

“We have seen our views go from the fringe, views that in years past would inhibit someone’s chances to be considered for the federal bench, to being the center of the conversation,” Don McGahn, the former White House counsel for Trump, said at a recent Federalist Society gathering.

Battle-Tested Conservatives

Willett, the former Texas Supreme Court justice, had a paper trail replete with political connections and ties to prominent Texas Republicans when he was nominated to the federal bench in 2017. He also had more than 25,000 posts on Twitter that often focused on current affairs and Republican politics.

During the last Republican administration, under Bush, he had advised judicial nominees “to bob and weave, be the teeniest tiniest target you can be,” Willett said during a speech in 2010, adding, “You want to be as bland, forgettable and unremarkable as possible.”

No more. The Trump approach has translated into a new breed of appellate appointees with open experience in ideological and political warfare.

About three-quarters of Trump’s appellate appointees donated to political candidates and causes. They were also more likely than the Obama and Bush nominees to have been affiliated with an election campaign in the decade before their appointment.

At least eight of Trump’s appointees had ties to his administration itself, including Judge Chad Readler, who had done legal work for Trump’s 2016 presidential campaign and later became acting head of the Justice Department’s civil division.

Another appointee, Judge Michael Park, had come to the support of the Trump administration in its unsuccessful effort to add a citizenship question to the census. As a private lawyer representing a conservative group, Park argued in 2018 that the question was justified.

The Supreme Court disagreed. Four months after Park weighed in, it was announced that Trump intended to nominate him to the U.S. Court of Appeals for the 2nd Circuit in New York.

Split Decisions

Unlike lower courts, the appellate courts, which review other courts’ decisions, do not have juries. Instead, cases are largely decided by panels of three judges, usually selected randomly from all of the judges in the circuit.

There is a culture of consensus in most circuits, and in the cases reviewed by The Times, appellate judges of both parties agreed with one another the vast majority of times. But when they did not, the Trump appointees stood out.

On panels that had members appointed by presidents of the same party, dissent occurred just 7% of the time. The rate jumped to 12% on panels that included a mix of judges appointed by both Democrats and Republicans.

But when a Trump appointee wrote an opinion for a panel with a lone Democrat, or served as the only Republican appointee, the dissent rate rose to 17% — meaning the likelihood of dissent was nearly 1.5 times higher if a Trump appointee was involved.

“You’re going to get some judges who will bite their tongue and say, ‘These are my colleagues — I’m not going to rock the boat unless I feel strongly about it,’” said Russell Wheeler, a visiting fellow at the Brookings Institution.

In other instances, however, judges “go in slashing and burning” with no regard for comity — or with an eye to drawing attention to themselves, he said. “Some of them obviously are going to be thinking about the next vacancy on the Supreme Court,” Wheeler said.

Tipping the Balance

The push in the Senate last November to confirm a White House lawyer for a top federal judgeship in New York unnerved Democrats.

The lawyer, Steven Menashi, had a trail of inflammatory writings about feminism and multiculturalism. He had declined to answer specific questions about his role in the Trump administration on family detentions and education policy.

And he had managed to get a confirmation vote only because Republicans did away with a courtesy rule letting home-state senators — in this case, Kirsten Gillibrand and Chuck Schumer — block nominees they found unworthy. Schumer had described him as “a textbook example of someone who does not deserve to sit on the federal bench.”

Not only did he get his seat on the 2nd Circuit, but his appointment marked a signature moment in Trump’s bid to tilt the nation’s appellate courts to the right: Menashi’s confirmation flipped the balance toward Republican appointees in a circuit encompassing three states — New York, Connecticut and Vermont — dominated at nearly every level by Democrats.

Judges named by Trump have forged new majorities in two other circuits — the 3rd and the 11th. And they have come close in the nation’s largest appeals court, the 9th, which has long issued rulings favorable to liberal causes.

As he seeks reelection, Trump has showcased his role in fulfilling the Republican judicial agenda. One afternoon last November, he gathered an array of Republican leaders and conservative judicial activists to celebrate his success.

“I’ve always heard, actually, that when you become president, the most — single most — important thing you can do is federal judges,” he said.

This article originally appeared in The New York Times .