Trump is capturing the judiciary at an alarming rate

Mexico is not paying for Donald Trump’s wall. The 2018 tax cut did not give tax relief to middle-class Americans. And no infrastructure or healthcare bills have emerged from this administration. But, the one promise that the president has kept, and perhaps the one that is of greatest importance to his base, is his selection of judges for the federal bench. The president has vowed to appoint judges who share the views and values of the minority of Americans who voted him into office. And he has succeeded. A look at the growing list of judges now occupying life terms in the federal judiciary shows that, as a general matter, they oppose reproductive rights, gay rights, affirmative action, unions, government regulation, any form of gun control, and immigration.

To date, 92 judges selected by Trump have been confirmed: two for the supreme court, 37 for the circuit courts of appeal, and 53 for the district courts (the entry level trial courts). Thirty-nine nominations have cleared the Senate judiciary committee (two appellate and 37 trial court) and are pending Senate confirmation – which means they could be confirmed any day. Twenty-one of these 39 were voted out of committee on a vote of 12-10 (54%) which means on strict party line votes – supported only by Republican senators. Finally, 61 more nominations (six appellate and 55 trial court) have been made. To date, Trump has appointed nearly 22% of the appellate judges with more surely to come. Only six of the 13 circuits have a majority of Democratic appointees and that number will decrease in the remaining months of his presidency.

These appointments are well on their way to reshaping the federal judiciary. Because so few cases are heard by the supreme court – between 80 and 90 per year – the circuit courts are often the final word on issues raised in federal court. A number of the circuit courts of appeals now have a majority of judges appointed by Republican presidents. For example, Trump has appointed 37.5% of judges in the sixth circuit (six of 16); 35% of judges in the seventh circuit (four of 11) and the same in the eighth circuit (four of 11); nearly 30% of the judges in the fifth circuit (five of 17) and 27% of judges on the eleventh circuit (three of 11). The addition of three Trump judges to the third circuit, has added that circuit to the list of circuits dominated by Republican appointees.

These new judges have already shown that they can be counted on to advance the president’s agenda. One example is judge James C Ho of the fifth circuit who referred to the “moral tragedy of abortion” in a recent published opinion. Finally, it is worth noting, that of the 92 judges confirmed to date, only 1% are African American, and only 25% are women.

A recent example of the impact of Trump’s circuit appointments is a decision of the full sixth circuit court of appeals. Ohio passed a law barring state public health grants to any organization performing abortions. Planned Parenthood sued the state claiming that Ohio had imposed an unconstitutional condition on its receipt of grants by effectively requiring that Planned Parenthood forgo providing abortion services to its clients. Planned Parenthood was successful in invalidating the law at the district court level and again at the circuit court, but then the full sixth circuit decided to hear the case en banc, which means by all of the judges of the circuit court. With the addition of four new Trump-appointed judges, the decision was reversed by a vote of 11-6, thereby re-instituting the law barring state funding of Planned Parenthood.

A different kind of example is a look at the background and qualifications of several recent appointees. Two nominees for the ninth circuit court of appeals – a circuit repeatedly attacked by Trump as a “complete and total disaster” – failed to receive the approval of either of their home state (California) senators. In the past, a nominee who did not receive what is known as a “blue slip” from their home state senators, was not given a hearing or a Senate vote and the nomination was eventually withdrawn.

The purpose of requiring this approval was to be sure that judges were drawn from a “mainstream” pool of those who would at the very least be acceptable to both parties. The two ninth circuit nominees drew sharp criticism from California senators Kamala Harris and Dianne Feinstein. One nominee, Kenneth Lee, has denigrated the struggle for racial justice, espoused harmful stereotypes about sexual violence, and expressed offensive views about the LGBTQ community. Worse yet, he had failed to disclose his writings on these subjects to the Senate judiciary committee. The second ninth circuit nominee, Daniel Collins, has fought to undermine civil liberties, weaken women’s rights, and has opposed criminal justice reform. He has represented entities accused of discrimination, human rights violations, and endangering the health and safety of US workers.

Two recently confirmed circuit judges share similar beliefs to these nominees. Paul Matey, a former highly placed aide to New Jersey’s governor Chris Christie, will now sit on the third circuit court of appeals despite the opposition of New Jersey senators Cory Booker and Robert Menendez. Similarly, Neomi Rao was just confirmed for Justice Brett Kavanaugh’s former seat on the very important DC circuit court of appeals despite the opposition of sexual assault victims, people of color, women, people with disabilities, and LGBTQ people. Among other positions, she has blamed sexual assault survivors for causing their attacks and belittled the fight for racial justice. In her years serving as administrator at the Office of Information and Regulatory Affairs, of the Office of Management and Budget, she has opposed environmental protections, immigrants, workers, and consumer rights. She previously served as a law clerk to Justice Clarence Thomas, and is close to the Federalist Society – an organization that has spearheaded Trump’s choice of judges for the federal bench.

Why do these appointments matter? Of our three branches of government, two and a half are now squarely in the control of the current conservative Republican party. This is the party that seeks to roll back a hundred years of progress with respect to women’s rights, racial justice, equal opportunity, workers’ rights, environmental protection and, of course, voting rights. The federal courts will soon be the last place to go to seek justice. We can only hope that our state courts remain up to the task of ensuring justice for all. It is unlikely they will find comfort in the federal courts.

• Shira A Scheindlin is a former US district judge for the southern district of New York, where she served for 22 years. She was appointed by Bill Clinton. She is a member of the executive committee of the Board of the Lawyers’ Committee for Civil Rights Under Law and Board of the American Constitution Society