President Trump's trouble with Democratic judges

The day after President Donald Trump abandoned his ill-conceived plan to add a citizenship question to the 2020 census, he said that one factor was the resistance of "three very unfriendly judges."

He was referring to U.S. District Judges Jesse Furman of New York, Richard Seeborg of California and George Hazel of Maryland, three Barack Obama appointees who ruled the Trump administration acted improperly in seeking to add the question. The Supreme Court unexpectedly upheld that stance.

This was not the first time that holdover federal judges have attracted Trump's ire, though, on some occasions, he ultimately succeeded in winning the cases at the appellate or Supreme Court levels. Since the start of his administration, The Washington Post calculated, Democratic appointees made the rulings in about two-thirds of the 70 cases in which the federal courts blocked actions by Trump.

But that will change in the months and years ahead. Since assuming office, Trump has placed a premium on filling judicial vacancies with conservative Republican judges. So far, the Senate has confirmed two Supreme Court justices, 41 appeals judges and 80 district judges.

It's only a matter of time before the success Senate Majority Leader Mitch McConnell has enjoyed in ramming through Trump's judgeship nominations will pay off in making the federal judiciary far more supportive.

Thanks to the confirmations of Justices Neil Gorsuch and Brett Kavanaugh, Trump already enjoys a 5-4 GOP margin in the Supreme Court, an edge he had expected would overturn the lower court rulings in the census citizenship case.

But the Republican chief justice, John Roberts, joined the four Democratic appointees in questioning the administration's contention the citizenship information would help it enforce the Voting Rights Act.

In the main, Roberts has sided with his fellow GOP conservatives in crucial cases, the one prior high profile exception being his opinion upholding the Affordable Care Act, known as Obamacare.

At the same time, the chief justice has sought to minimize the partisan aspects of judicial rulings. "We do not have Obama judges or Trump judges, Bush judges or Clinton judges," he said last November after Trump blamed an unfavorable ruling on an "Obama judge."

But the fact is judges have political pasts-that's how most get appointed. A majority of the most crucial lower court rulings against the administration were handed down by appointees of previous Democratic presidents, including several in immigration cases.

But not all of them.

For example, Judge John Bates, an appointee of President George W. Bush, ruled against Trump's effort to halt Obama's DACA (Deferred Action for Childhood Arrivals) protection for illegal immigrants brought to the United States as children. The Supreme Court will consider an appeal from his ruling next year.

Judge Timothy Kelly, a Trump appointee, ruled the White House violated CNN White House correspondent Jim Acosta's First Amendment rights by revoking his press pass, a decision the administration decided not to appeal.

And though administration views have sometimes prevailed at the district court level, one of the biggest "victories" may ultimately prove pyrrhic. That was Judge Reed O'Connor's ruling in Dallas that congressional elimination of Obamacare's mandate requiring everyone to have health insurance made the entire law unconstitutional.

That case was considered last week by a three-judge panel of the 5th U.S. Circuit Court of Appeals, which consisted of one Trump nominee, one George W. Bush nominee and one of the last Jimmy Carter nominees on the federal courts.

A fact of political life: Democratic nominees presided over so many of these cases because two of the last three presidents before Trump were Democrats.

That's why Democratic nominees currently hold 321 district judgeships, compared to 247 named by GOP presidents.

But at the appellate level, Trump and McConnell have already given Republicans a 91-82 advantage. Six appellate vacancies and 95 open district judgeships remain, meaning the GOP will be able to increase its numbers between now and the 2020 election.

And if Trump is re-elected next year, the Republican judicial advantage will increase even more on lower levels and possibly on the Supreme Court, where the two oldest justices are Democratic appointees, Ruth Bader Ginsburg, 86, and Stephen Breyer, 80.

As a result, it would not only mean administration actions could encounter less judicial resistance in a second Trump term but could set a long-term trap for the next Democratic president.

After all, in politics, what goes around often comes around.

Upcoming Events