By Emma Janger & Molly Coleman
On Wednesday, Trump stood in the Rose Garden and pledged that if re-elected he would be able to “choose hundreds of federal judges” and as many as four Supreme Court Justices. He then revealed his revised shortlist for the Supreme Court, handpicked by the Federalist Society. From Tom Cotton to Noel Francisco, the lawyers on Trump’s list are dedicated to preserving the power of corporate America, and are willing to stand against progress at every turn. They’re people like Sarah Pitlyk, Ted Cruz, and Josh Hawley: people whose only relevant qualification is their commitment to advancing the agenda of the far-right.
But we didn’t need today’s press conference to know what Donald Trump envisions for the federal judiciary. In under four years, Trump and Mitch McConnell have placed over 200 judges on the bench, nearly all of them white men with backgrounds in corporate law or prosecution. The judicial branch is now filled with judges considered unqualified by the American Bar Association, judges who refuse to acknowledge that Brown v. Board of Education is correctly decided, and judges who have made it their lives’ work to overturn Roe v. Wade. Trump’s list this week is simply more of the same.
The brazenness of Trump and McConnell’s effort to place the entirety of the federal judiciary into the hands of Republican judges has, for the first time in decades, caught the attention of a majority of the Democratic Party. Well over half of Democratic voters now consider at least the Supreme Court to be a “very important” consideration as they decide who to support in November. But the fight only begins with the nation’s highest Court.
The lower courts, with their new Trump-appointed judges, also have significant power to block progress. If Democrats are serious about moving the country forward, their commitment to the courts needs to go beyond who will replace Ruth Bader Ginsburg. They need a new vision for the federal bench.
In building this new vision, progressives would do well to draw from the lessons of the last four years. The conservative takeover of the judiciary is not just a product of their ruthless efficiency and rapid pace of judicial confirmations. Trump, McConnell, and their allies at the Federalist Society have both made and shaped history through their dedication to appointing young judges to lifetime seats, where they will influence every aspect of life in the United States for decades to come.
The median age of Trump’s appellate judge nominees is 48.2; the youngest judge he has nominated to the Court of Appeals was 36 years old at the time of her nomination. And in August, Trump nominated Kathryn Kimball Mizelle to the District Court for the Middle District of Florida; Mizelle is 33, an associate at Jones Day, and just one year out of her own clerkship. Should she be confirmed, she could shape federal jurisprudence for the next fifty years.
By comparison, Obama was known for his penchant for nominating older judges: the median age of his appellate nominees was 57.2, almost a full decade older than those installed by the current administration. The impact of an additional decade on the bench can hardly be overstated. Federal judges have annual caseloads in the hundreds. Ten additional years of service in the judiciary results in thousands more cases heard, policies touched, and lives changed.
Conservatives’ commitment to nominating young judges reflects a core philosophical difference between the Republican and Democratic parties. Republicans put people on the bench as a means to advance the conservative agenda. Republicans see the federal bench as a natural fit for those who are young and committed to their party’s ideology.
Take Sarah Pitlyk, one of only 48 women Trump has nominated to the bench. Pitlyk devoted her early legal career to two things: advancing the interests of corporate America and eliminating the right of pregnant people to choose whether or not to give birth. The Federalist Society and the Republican Party recognized that Pitlyk could advance these causes more effectively from the federal bench than from the Thomas More Society. Despite her “unqualified” rating from the American Bar Association, she now sits as a judge for the United States District Court for the Eastern District of Missouri and has been placed on Trump’s shortlist for the Supreme Court.
While many of Trump’s nominees, like Pitlyk, are unqualified and unfit for the bench, it is not a consequence of their young age. Trump’s judges may be unsure how motions proceed in federal court, but this reflects only their thin levels of experience. Trump has not nominated the best and the brightest of a new generation of lawyers, but the true believers: lawyers who have been in lock-step with the Federalist Society since law school.
Democrats, by contrast, have long treated an appointment to the federal bench as a reward for decades of playing by the rules. Democratic nominees are far more likely to be at the end of a long career, appointed to the bench mere years before retirement. Almost ten percent of President Obama’s appellate nominees have already taken Senior status, opening up new seats for Trump’s nominees.
This foundational difference can be largely attributed to the fact that for committed progressive attorneys and activists, a transition to the federal bench is seen not as a means of advancing their cause, but as something that would take them out of the fight to build a better country. If the left is serious about progress, it’s time to let go of this mentality and to recognize the power that can be built by putting young, progressive lawyers on the bench.
In 1956 President Eisenhower appointed Frank Minis Johnson Jr. to the Middle District of Alabama District Court. He was 38 years old. In his first year on the bench, Johnson ruled that Montgomery’s law requiring Black bus riders to sit in the back was unconstitutional, solidifying a hard-fought victory for Rosa Parks and the other leaders of the Montgomery bus boycott. In 1961 and 1962, he ordered the desegregation of Montgomery bus depots and the Montgomery Regional Airport. When the Montgomery police and the Ku Klux Klan attacked the Freedom Riders as they attempted to integrate interstate bus travel, it was Judge Johnson who ordered an end to the violence. And in 1965, it was Judge Johnson who overturned Governor George Wallace’s prohibition on the march from Selma to Montgomery. Johnson’s act of judicial courage meant that, on March 25, 1965 over 25,000 people were able to march across the Edmund Pettus Bridge; months later Lyndon Johnson signed the Voting Rights Act into law. Judge Johnson ultimately went on to serve as a judge for 43 years, until his death in 1999.
Lasting change, of the type Judge Johnson worked for, won’t be possible without a deep commitment to building a deeply progressive federal bench. Courts alone will never save us, but — as Trump and McConnell’s judges are demonstrating — they can destroy us. It is long past time for a federal judiciary that reflects the diversity of the people impacted by that judiciary: currently nearly 60% of circuit court judges are former partners at corporate law firms, and former prosecutors are similarly overrepresented. We adamantly support Demand Justice’s call to ensure that there are no more corporate attorneys nominated to the bench, but know that a temporary moratorium on appointing corporate partners alone won’t be enough. The next Democratic administration has to prioritize nominating young progressives in order to counter the conservative takeover of the last four years.
We need a federal bench filled with rising progressive stars. And that means that, when Democrats control the White House again, they must nominate younger judges
Outside the judiciary, the left is going through a generational change. Youth-led groups like the Sunrise Movement have galvanized progressives to save the planet from climate disaster. High school students have renewed progressives’ commitment to end the gun violence epidemic. And young people have been at the forefront of the Black Lives Matter uprisings, pushing progressives to acknowledge and correct systemic racism and white supremacy. From AOC to Jamaal Bowman to Cori Bush, young progressive primary challengers have been defeating corporate Democrats who were content to continue with business as usual.
This generational shift is poised to move the country a long way towards enacting needed progressive change. But without a comparable commitment to generational change within the federal judiciary, we’ll have to be prepared for progressive legislation to be blocked the moment it is challenged in court. If we want this generational change to matter — if we want to make progress on climate change, or uphold Medicare for All, or safeguard the rights of the LGBTQ+ community — then we must include judges in the conversation.
That’s why we are announcing our vision for the circuit courts. At the People’s Parity Project, we believe the federal circuit courts should reflect the very best of the legal profession. That’s why we’ve released a shortlist of our own: our vision for the bench. We are calling for the next administration to fill the circuit courts with young lawyers from around the country — lawyers who have dedicated their careers to fighting for justice.
Nominating young progressives at all levels of the judiciary would create a bench filled with judges who understand the economic realities of the gig economy and growing inequality; judges for whom climate change is not a theoretical question to be debated on CNN, but a looming threat casting a shadow over their lives; judges who understand the fundamental threat new technology poses to civil rights and civil liberties. It would mean judges who themselves were the first in their family to go to college. Judges whose courtroom experience comes from representing everyday consumers in class actions, workers who have faced gender-based discrimination, and indigent clients trapped in the criminal legal system, not big corporations like EPIC Systems and ExxonMobil.
Our new vision for the judiciary would mean nominating people of truly diverse professional backgrounds, people who have had a variety of jobs, legal and not, pushing to create a more just society: judges who will sit on the bench with the experiences of organizers, policy-makers, and teachers.
Even if Trump is ensconced in a golf cart never to be heard from again come January 20, 2021, America will still have to reckon with the over 200 judges that he and the Federalist Society pushed onto the Federal courts. To do that, we will have to do more than return to the status quo. Progressives must prioritize enlivening the entire federal bench, from the District Courts to the Supreme Court by nominating young, progressive lawyers.