Donald Trump has appointed 34 federal judges so far in his second time in office, and clear patterns have emerged. The one most people have noticed is that his nominees are overwhelmingly white and male, with only 9 women among the list and 91% of his picks being white. He is thus following a similar pattern as his first term, when 85% of his nominees were white and 76% were male.
People have also commented on the fact the appointees seem to be loyalists to him. Emil Bove, who is now a judge on the Third Circuit, is the most notable among that crew, having previously served a high-profile and controversial role in Trump’s Department of Justice, enforcing his immigration agenda, and advising on pardoning January 6 insurrectionists and dismissing the DOJ lawyers who brought the cases. He has also nominated Justin Smith, a lawyer who represented him in the presidential immunity case in the Supreme Court and in the litigation between Trump and E. Jean Carroll, for a seat on the Eighth Circuit. Other nominees demonstrated their loyalty by refusing to answer questions during their confirmation hearings about whether the Capitol was attacked on January 6.
Trump’s judges also have a record of supporting policies Trump likes. For example, Edmund LaCour, now a judge in the Northern District of Alabama, argued for limiting the Voting Rights Act when he represented Alabama as solicitor general. Former Missouri Solicitor General Joshua Divine, now a judge on the Eastern District of Missouri, wrote an op-ed as a student advocating for literacy tests for voters. Trump has also picked people who served in the Department of Justice’s Office of Legal Counsel during his time in office, a period when the OLC has blessed everything he has wanted to do. Jennifer Lee Mascott, now also a judge on the Third Circuit, served in that office, as did Jordan Emery Pratt, now a judge in the Middle District of Florida.
There is, however, another stark pattern among Trump’s picks that has received little attention: He has overwhelmingly favored lawyers who have worked for the government and most often as prosecutors. Of his 34 picks, at least 25 of them have represented the government as lawyers. Three of them worked in the Department of Justice in high level positions, four of them defended a state as part of a state solicitor general’s office, and a whopping 18 of the 34 picks – more than half – served as prosecutors.
This continues a pattern from Trump’s first term. A Cato study of Trump’s first term found that the appointments “exacerbated the already substantial disparity on the federal bench between judges who used to represent the government in court versus judges who used to challenge the government in court.” Specifically, among Trump’s first term nominees, “ex-prosecutors outnumbered public defenders and other defense attorneys by over ten to one.” The ratio is an even more alarming 12-to-one if you compare all lawyers who represented the government (not just as a prosecutor but in other capacities) compared to those who represented individuals challenging the government.
Thus, even people who are not loyal to Trump have professional backgrounds that suggest they see the world from the government’s perspective, and specifically from the perspective of the executive branch. These former prosecutors are unlikely to question law enforcement demands. Nor are these executive branch veterans likely to question claims for broader executive power because that is where they have spent their careers.
Consider the backgrounds of four of the five justices on the Supreme Court who signed on to the broadest view of presidential immunity ever recognized – absolute immunity for actions within presidents’ core constitutional powers and presumptive immunity for all their other official acts – something nowhere mentioned in the Constitution. Chief Justice Roberts had extensive executive branch experience before becoming a judge, working in the White House Counsel’s office and as a Special Assistant to the Attorney General. Justice Alito worked in the Office of Legal Counsel and was a federal prosecutor. Justice Gorsuch also worked in the Department of Justice, and Justice Kavanaugh worked in the White House Counsel’s Office. Only Justice Thomas lacked DOJ or White House experience. This kind of experience creates a worldview that favors executive power.
I recently documented in my book, Justice Abandoned, the ways in which the Court’s favoritism toward the government helped feed the engine of mass incarceration in America. The dominance of former prosecutors on the list is disconcerting because these are people unlikely to see the dangers of excessive law enforcement tactics or the potential for abuse.
To the extent people on Trump’s list represented individual clients, the client was him. This is not a list of people with experience representing criminal defendants against the awesome power of the state or defending the civil rights of people in the minority or at risk of oppression.
This is a judiciary built for the kind of America Trump wants to create: one with aggressive law enforcement powers that go unchecked, led by a president with king-like powers over the executive branch. These judges have life tenure, so this Trump legacy will long outlast his own time in office.
In many ways, Trump is adding to a Republican blueprint in place for decades, as Republican presidents have long favored judicial nominees who take a strong view of executive power. Both parties, moreover, have tended to favor people with prosecution experience. The Cato report noted that President Obama also favored judges with prosecution experience, with 41% of his nominees having experience as prosecutors and only 14% having worked in public defense.
President Biden answered the call to balance the judiciary by appointing judges with diverse professional backgrounds, including as defense lawyers and civil rights lawyers. Indeed, more than 40% of his 235 judicial appointments had those backgrounds.
The Democrats need to pick up this mantle to provide much needed balance to the judicial branch Trump is creating. If the Democrats take control of the Senate, they need to stand firm against Trump nominations. Most critically, the next Democratic president needs to redouble the Biden effort to bring balance to the bench. Federal judges are the guardians of our constitutional rights, and they need to have an open mind to allegations of government abuse of power. A bench filled with former government employees who advocated for broad law enforcement and executive powers is bound to come up short.
