Less than seven weeks before the midterm elections, US President Donald Trump sought to put his strong mark on the judiciary, by accelerating the appointment of a group of federal judges and obtaining the approval of the Senate for their appointment, before the election ballots determine next November whether the Republicans will retain the Senate or not.
According to Reuters today (Wednesday), Trump announced, within just nine days in August, the nomination of 13 new judges, at a time when the Senate was on its summer recess. Six of the candidates appear before the Judiciary Committee today, while the others await a vote by the full Council. The confirmation of judges requires a simple majority in the Senate, which is currently controlled by Republicans with 53 seats compared to 47 for Democrats.
The speed with which the White House is trying to appoint these judges reveals real fears that control of the Senate will transfer to the Democrats in the November 3 elections, which will make Trump’s ability to appoint new judges very limited starting next January.
Robert Luther, a law professor at George Mason University, who worked on judicial nominations in the White House during Trump's first term, told Reuters that administrations enter such a stage always keeping in mind the fear of losing the Senate.
This does not mean that the White House considers the loss of the Senate a foregone conclusion, but the concern has become more real after the results of several opinion polls indicated improved Democratic chances in a number of states, amid a decline in Trump’s popularity, and voters’ dissatisfaction with the economy, which led to rising expectations of a “blue wave” sweeping the Senate, after Republicans were more confident in retaining the majority in the Senate several months ago.
Control of the judiciary
Since his return to power in January last year, Trump has succeeded in confirming the appointment of 54 judges. During his first term, he appointed 234 judges. Reuters indicated that the judges chosen by Trump now represent approximately one-third of the number of federal judges, as the federal judge is appointed for life in accordance with the law.
On Tuesday, the Senate approved by a vote of 52 to 45 the appointment of conservative Judge Matthew Byrne to the Federal Court for the Southern District of Ohio. Byrne has taken prominent conservative positions on abortion and gay issues, while his supporters say he has extensive judicial experience and that his record shows his commitment to binding judicial precedent.
This week, the White House sent another batch of nominations to the Senate, including judges for courts in 8 states: Tennessee, North Dakota, Kentucky, Texas, Louisiana, Florida, Oklahoma, and Alaska, in addition to nominating Judge Lee Rudofsky for promotion to the Court of Appeals for the Eighth Circuit.
Reuters says that Judge Rudofsky represents a particularly important case. If the Senate approves his promotion, Trump's judges will become a majority on the Eighth Circuit Court of Appeals, which covers seven states in the center of the country, making it the first of the 13 federal courts of appeals to be overwhelmed by Trump's appointments.
An investment that spans decades
What explains the White House’s interest in appointing judges is that executive policies can be repealed by a subsequent president, and laws can be amended if the majority in Congress changes, but federal judges may remain in their positions in the future, which is the legacy that Trump is trying to establish for decades to come. The strength of this legacy was already evident during Joe Biden's presidency, when judges appointed by Trump in his first term issued rulings that disrupted Democratic policies on immigration, student debt forgiveness, and protection of gay rights.
On the other hand, court judges have also proven that they are not an automatic extension of the White House; Judges appointed by Trump have issued rulings against his administration. The president also this week attacked some of his own Supreme Court justices, after the court refused to allow new restrictions on mail-in voting before the November election. He also directed his anger at the Supreme Court judges when they opposed restricting the granting of citizenship by birth, and other decisions related to his authority to impose customs duties unilaterally. But at the same time, the Supreme Court model illustrates the long-term impact of appointments. Trump appointed three of its judges during his first term, and the conservative majority contributed to rulings that changed American law on abortion, affirmative action, gun rights, and redrawing electoral districts.
Loyalty battle
The White House says the selection criterion is legal competence. Spokeswoman Lauren Pace confirmed in a statement that Trump selects highly qualified candidates after a rigorous vetting process, and who enjoy respect for the Constitution and the rule of law.
But Democrats ask a different question about whether loyalty to the president has become a more prominent factor in his choices for his second term. They point out in particular that candidates during the Senate sessions avoided directly answering the question of whether Trump lost the 2020 elections, and merely said that Joe Biden’s victory had been certified. Also, three of Trump's 13 nominees for appeals courts in this state previously worked as his personal lawyers, and were confirmed.
Window is narrowing
The White House's urgency is not only due to the possibility of a change in the majority in the Senate. The number of vacant judicial seats and judges expected to retire is declining, which means that Trump's chances of making new major changes may become less, even if Republicans retain the Council.
The race for appointments before possible elections to change the majority is not limited to Republicans. Biden and the Democrats faced similar pressures before the 2022 elections, and Biden ended his presidency by confirming 235 judges, one more than Trump’s tally in his first term. But the difference now is the political context, because Trump’s judicial nominations carry a message that goes beyond the names of the thirteen candidates, as the White House is trying to invest in the Republican majority it has today before the November funds decide whether it will still exist tomorrow. If Trump cannot guarantee who will control the Senate in January, before that, he can try to install judges who will remain in the courts after the end of the 2026 elections, and even after the end of his presidency itself.
