President Donald Trump, making his first moves to fill more than 120 vacancies on the federal bench, reportedly will make 10 nominations for federal judgeships on Monday, giving him a rare opportunity to fill a key pipeline for Supreme Court nominees with reliable conservatives -- some of whom have been vetted by two influential Washington think tanks.
The move, sure to hearten conservatives and give heartburn to liberals, is the first in what the New York Times reports will be a wave of White House nominees to the federal judiciary, with Trump embracing his sweeping new power to steer the federal courts decisively to the right.
White House counsel Donald F. McGahn II told The Times on Sunday that Trump is moving quickly to fulfill a campaign promise "to appoint strong and principled jurists to the federal bench who will enforce the Constitution's limits on federal power and protect the liberty of all Americans."
That means Trump's nominees to federal district, circuit and appellate courts -- which he inherited after Senate Republicans largely blocked former President Barack Obama from filling them -- could move federal law to the right on a range of contentious social issues, like immigration, abortion and voting rights.
"It's very significant not just because these are potential Supreme Court nominations, but because so few of the cases decided by the court of appeals get to the Supreme Court," says Susan Low Bloch, who teaches constitutional law at Georgetown University Law Center. The lower courts, she says, "are incredibly significant in determining the direction of the law. The public doesn't pay as much attention to the [lower courts], but it should. These courts are so powerful."
Meanwhile, Senate Democrats, stripped of the minority party's right to filibuster any of Trump's judicial nominees, are largely powerless to stop the GOP from rubber-stamping the president's choices. "It was great planning by [Senate Majority Leader] Mitch McConnell," says Caroline Fredrickson, president of the liberal American Constitution Society.
As a result, progressive groups are alarmed by the prospect of a judiciary stocked with Trump nominees.
"The Trump administration has made clear its intention to benefit from Republican obstructionism and to pack the federal courts with ultraconservatives given a stamp of approval by the Federalist Society," Nan Aron, president of the Alliance for Justice, told The Times. Along with The Heritage Foundation, the Federalist Society provided Trump with a list of 21 jurists who have solid conservative bona fides.
"We'll be scrutinizing the records of these nominees very carefully," Aron said.
The White House has said Trump will pick from the 21 jurists on the list, which Trump touted during the campaign as proof of his conservative credentials. But McGahn, who has overseen the judicial nomination process, said Trump is also looking for other qualifications, including outstanding academic credentials and "intellectual boldness."
That description fits the profile of Supreme Court Justice Neil Gorsuch, Trump's first nominee to the high court, whose name was on the list. A brilliant legal scholar, Gorsuch replaced the late Justice Antonin Scalia, a firebrand conservative who died suddenly in February 2016.
According to The Times, Trump's first batch of nominees include two state supreme court judges who were also on the Heritage/Federalist Society list.
"One is Justice Joan L. Larsen, a former law clerk to Justice Antonin Scalia and law professor at the University of Michigan, who now serves on the Michigan Supreme Court," according to The Times. "She will be nominated to the United States Court of Appeals for the Sixth Circuit, in Cincinnati. The other is Justice David R. Stras, a former law clerk to Justice Clarence Thomas and law professor at the University of Minnesota, who now serves on the Minnesota Supreme Court. He will be nominated to the Eighth Circuit, in St. Louis."
Monday's group will also include "three other nominees for federal appeals courts: Amy Coney Barrett, a law professor at Notre Dame and former law clerk to Justice Scalia, to the Seventh Circuit in Chicago; John K. Bush, a lawyer in Louisville, Ky., to the Sixth Circuit; and Kevin C. Newsom, a lawyer in Birmingham, Ala., who served as the state's solicitor general and as a law clerk to Justice David H. Souter, to the 11th Circuit in Atlanta," according to The Times.
The White House believes their probable confirmation to the federal bench will give them an opportunity to build a record of federal judicial opinions, which in turn would make them attractive candidates for the high court.
But Bloch says decisions by appellate-court judges, which tend to be less visible than ones by the Supreme Court, can have just as big a national impact.
Earlier this year, for example, the justices sent back to the appellate court for rehearing a case involving a transgender teenager seeking equal access to school restrooms, and a federal judge in Virginia is hearing the Trump administration's arguments for a temporary ban on immigrants from Muslim-majority countries.
"The Supreme Court hears such a small percentage of cases," Bloch says. Compared to the thousands of rulings that come from federal appellate courts each year, the nine justices "decide, like, 70 cases a year."
As a result, federal courts "are where most of the law comes from," she says.
"I was surprised that [Trump will fill] only 10" vacancies, Bloch says. Still, "I bet by the [2018 midterm elections] they'll all be filled, because [Republicans] are not sure they'll keep the Senate. If they're smart they'll fill all these vacancies."
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