In the first televised presidential debate between Donald Trump and Joe Biden in 2020, the sitting president was asked why voters should re-elect him to the White House. He gave a relatively obscure answer – it was all about the judges, he said.
By the end of his first term in office, Trump bragged, he would have smashed all records for the number of his appointments to the federal bench. “I’ll have approximately 300 federal judges.”
Characteristically, Trump was lying. He ended his single tenure having placed 231 men and women on the federal bench, including three on the US supreme court, 54 on appeals circuits and 174 on district courts.
But, despite the hyperbole, Trump still had reason to be cheerful: in one four-year term he slammed through about 30% of the entire US federal judiciary. That’s more appointments than George W Bush (156) and almost as many as Barack Obama (315) – who both had eight years.
Last week, the significance of Trump’s hyper-aggressive remodeling of the federal bench lurched into view. Aileen Cannon, who Trump nominated for the US district court for the southern district of Florida in May 2020, granted the former president his desire to have a “special master” handle thousands of documents seized by the FBI from the former president’s Mar-a-Lago club in Florida.
The ruling was greeted with astonishment by legal scholars who noted how convenient it was for Trump to give the special master control over highly classified materials. Cannon effectively erected a roadblock in front of the justice department’s criminal investigation into how national security intelligence had been illegally hidden in Mar-a-Lago.
Even William Barr, himself a former Trump appointee as US attorney general, had only harsh words. “Deeply flawed”, he said about the ruling.
But Cannon’s maverick decision is just the thin end of the wedge. From the supreme court down, the impact of Trump’s recalibration of the federal judiciary is now starting to sting.
The consequences of Trump’s three appointments to the supreme court are now well understood by many Americans. The evisceration of the right to an abortion; blocking government action on the climate crisis; rolling back gun control laws are just a few of the seismic changes wrought by the court’s new 6-to-3 conservative supermajority.
Less visible and much less well comprehended are the similarly drastic shifts that are being initiated in the lower courts by Trump-appointed judges like Cannon. “These appointments are not only tilting the law further right, they are starting to erode fundamental democratic protections,” said Rakim Brooks, president of the advocacy group Alliance for Justice.
Biden is doing what he can to push the needle back towards the centre. A review by the Pew Research Center last month found that the Democratic president had managed to surpass Trump’s rate at seating federal judges, achieving more confirmations at an equivalent point in his tenure than any president since John Kennedy.
Today Biden has confirmed a total of 81 federal judges (80 if you discount the fact that he nominated Ketanji Brown Jackson twice – first for an appeals court…