Will he go the same way as Richard Nixon? Not quite. Even if he were impeached today, Donald Trump wouldn’t be labelled a “loser.” Why? In less than a year he has succeeded in redesigning the United States as an even more conservative nation, something which will have consequences for the US population and the entire planet over the next few decades.
The foundations and the cement of this redesign are to be found in the Judiciary. And that is no spontaneous improvisation like his Twitter posts; the target of Donald Trump’s campaign promises was the make-up of the federal judiciary. He knew that approximately 15 percent of federal benches were vacant, after Senate Republicans managed to engineer a historical slowdown of Barack Obama’s nominees to every level of the justice system. He also promised to appoint only pro-life conservatives to the Supreme Court, as he did with Neil Gorsuch, confirmed in April by the Senate by a 54-45 vote. According to David Lynch, the Financial Times correspondent in Washington, both promises were “instrumental in cementing evangelical support for his campaign.” And they were fundamental for his narrow victory, of course.
But there is more. It takes just 51 senatorial votes (half plus one) to confirm a judge, and currently there are 52 Republicans sitting in the Senate. Unless the Democrats regain the Senate in the 2018 midterm elections, which political analysts think is unlikely, Trump and his GOP senators would continue on their merry way picking judges for the lower courts. In any case, taking advantage of this majority, Mr Trump has been appointing judges at a breakneck pace.
A mere revision of the nominations he has made will show that Trump’s choices will certainly have an impact on generations tocome: so far, of the 16 judges nominated for the courts of appeals and the 44 judges for the district courts, only 11 of these are female (18.3 percent), one is African-American and one is Hispanic. More than half of them are under 45 years old, meaning they will be in court for, most probably, a period of three decades. Shira Scheindlin, a former US district judge for the southern district of New York, depicts the importance of Trump’s judiciary crusade: “In 2015, the US Supreme Court decided approximately 82 cases; in 2016, it was approximately 69.”
“In contrast,” she adds, “the 12 United States courts of appeals decided 52,000 cases in 2015 and 58,000 in 2016, while the district courts decided 353,000 cases in 2015 and 355,000 in 2016.” This means that while the Supreme Court is the court of last resort, approximately 99.9 percent of the judicial business of the United States is decided in what are called “the lower courts.”
These lower courts decide cases crucial to the day-to-day of US society regarding contraception, privacy, immigration, discrimination, affirmative action, workplace rules or environmental impacts. The panorama is even brighter regarding the appeals courts, where nearly 74 of the 150 active appeals court judges are eligible to take senior status — semi-retirement, thus permitting a successor’s appointment — or will soon reach that age, according to Russell Wheeler, a Brookings Institution scholar.
So who is advising Mr Trump, a real estate entrepreneur with no legal track record whatsoever, in picking up the potential nominees? Various judicial analysts point out that the president is outsourcing his nominations process to the Federalist Society, an ultra-conservative legal network, and the Heritage Foundation, a pro-GOP thinktank. Who is in the middle? On the one hand, Vice-President Mike Pence, the truly diehard conservative Republican in the presidential ticket, on the other, Donald Mc- Gahn, the White House legal counsel who has mapped out a strategy.
That strategy, according to sources quoted by the New York Times, “has started by filling vacancies in appeals courts with multiple openings and where Democratic senators up for re-election next year in states won by Mr.
Trump — like Indiana, Michigan and Pennsylvania — could be pressured not to block his nominees.” There is yet another plan being concocted too. The chair of the Federalist Society, Steven Calabresi, has presented an even bolder strategy: he is proposing that Congress pass a law increasing the number of federal judgeships throughout the country.
(Don’t rub your eyes: this is not one of those Latin American countries proposing a judiciary overhaul – it is the United States of America!). If this were to go into effect, it would mean that almost half (and not a mere 15 percent) of the members of the Judiciary would have been appointed by President Trump, while the other half were appointed by nine previous presidents.
Federal judges and Supreme Court justices serve for life and that is why Donald Trump’s appointments are crucial in the shaping of a conservative nation: they will serve long after his presidency, regardless of whether he can win two terms in office or if he is impeached and has to resign tomorrow. Trump will leave a legacy to be weighed in decades, not in gold.
(*) Former editor of the Buenos Aires Herald (2010-2013).