As a Republican candidate for the Texas Supreme Court, Don Willett flaunted his uncompromising conservatism, boasting of endorsements from groups with “pro-life, pro-faith, pro-family” credentials.
“I intend to build such a fiercely conservative record on the court that I will be unconfirmable for any future federal judicial post — and proudly so,” a Republican rival quoted him telling party leaders.
Willett served a dozen years on the Texas bench. But rather than disqualifying him, his record there propelled him to the very job he had deemed beyond reach. President Donald Trump nominated him to a federal appeals court, and Republicans in the Senate narrowly confirmed him on a party-line vote.
As Trump seeks reelection, his rightward overhaul of the federal judiciary — in particular, the highly influential appeals courts — has been invoked as one of his most enduring accomplishments. While individual nominees have drawn scrutiny, The New York Times conducted a deep examination of all 51 new appellate judges to obtain a collective portrait of the Trump-populated bench.
The review shows that the Trump class of appellate judges, much like the president himself, breaks significantly with the norms set by his Democratic and Republican predecessors, Barack Obama and George W. Bush.
The lifetime appointees — who make up more than a quarter of the entire appellate bench — were more openly engaged in causes important to Republicans, such as opposition to same-sex marriage and to government funding for abortion.
They more typically held a political post in the federal government and donated money to political candidates and causes. Just four had no discernible political activity in their past, and several were confirmed despite an unfavorable rating from the American Bar Association — the first time that had happened at the appellate level in decades.
Two-thirds are white men, and as a group, they are much younger than the Obama and Bush appointees.
Once on the bench, the Trump appointees have stood out from their fellow judges, according to an analysis by The Times of more than 10,000 published decisions and dissents through December.
When ruling on cases, they have been notably more likely than other Republican appointees to disagree with peers selected by Democratic presidents, and more likely to agree with those Republican appointees, suggesting they are more consistently conservative. Among the dozen or so judges that most fit the pattern, The Times found, are three Trump has signaled were on his Supreme Court shortlist.
While the appellate courts favor consensus and disagreement remains relatively rare — there were 125 instances when a Trump appointee wrote the majority opinion or dissent in a split decision — the new judges have ruled on disputed cases across a range of contentious issues, including abortion, immigration, LGBT rights and lobbying requirements, the examination shows.
One new judge, who had held a political job in the Trump administration, dissented on an issue of particular importance to the president: disclosure of his financial records. The judge, Neomi Rao, opposed a decision requiring the release of the documents to a congressional committee, a mandate the president continues to resist and is now before the Supreme Court.
“They have long records of standing up, and they’re not afraid of being unpopular,” said Carrie Severino, president of the Judicial Crisis Network, a conservative advocacy group that has pushed for the mold-breaking appointments. Severino once served as a law clerk for Justice Clarence Thomas, one of the Supreme Court’s most reliably conservative members.
Stephen Burbank, a law professor at the University of Pennsylvania, said Trump’s appointments reflected attempts by recent presidents to draw the federal judiciary — a constitutionally independent branch of government — into policy debates more appropriate in Congress and the White House.
“The problem as I see it is not that judges differ ideologically — of course they do — nor is it that a Republican president would look for someone with congenial ideological preferences,” Burbank said. “It’s that in recent decades the search has been for hard-wired ideologues because they’re reliable policy agents.”
Trump has appointed more judges to the appeals courts, where eight of the nine current Supreme Court Justices served, than any other president during the first three years in office. Also known as circuits, the 13 courts are the last stop for federal cases before the Supreme Court, and nearly all federal litigation ends there.
The Times examination was based on interviews with dozens of people close to the nomination process, including some of Trump’s appointees; the analysis of thousands of published decisions and dissents since Trump became president; a review of detailed biographical and financial questionnaires submitted by all 168 appellate judges named by Trump, Obama and Bush, as well as their records, public statements and campaign contributions since 1989.
Judicial appointments, a standard measure of a president’s legacy, almost always draw partisan scrutiny, as Republicans tend to appoint conservative lawyers who interpret the Constitution according to what they say was its original meaning, and Democrats lean toward liberal appointees with a more expansive view. But Trump’s record is particularly striking because of the divisive atmosphere, the examination shows, and the president’s disruptive approach to governing.
The White House did not respond to requests for comment, and none of the judges contacted by The Times would agree to be quoted.
When Trump took office there were 103 unfilled federal court openings, in addition to a Supreme Court seat, in part because Sen. Mitch McConnell, R-Ky., the majority leader, and his allies had refused to proceed with confirming many of Obama’s nominees. The last time so many vacancies had been left to a successor of the opposing party was when the federal bench was expanded by dozens of judges under President George H.W. Bush.
Trump wasted no time in seizing the opportunity. During his first three years in office, with McConnell’s assistance, he was able to name nearly as many appellate judges as Obama had appointed over two terms.
And he did so with great political flourish. More than one-third of the Trump appointees have filled seats previously occupied by judges appointed by Democrats, tipping the balance toward conservatives in some circuits that include largely Democratic states like New York and Connecticut. Even in the San Francisco-based 9th Circuit, a reliably liberal appeals court, Trump has significantly narrowed the gap between judges appointed by Democratic and Republican presidents.
With Republicans and Democrats in Congress retreating to their corners, many of the Trump appointees have benefited from Republicans’ decision to extend a contentious and partisan confirmation path that upended bipartisan Senate practices.
Two-thirds of the new appellate judges failed to win the support of 60 senators, historically a requirement of consensus that was first jettisoned by the Democratic-controlled Senate midway through the Obama administration because Republicans were blocking nominees to the D.C. Circuit. After he became majority leader, McConnell followed suit when Democrats initially blocked Trump’s first Supreme Court nominee, Neil Gorsuch.
About a third did not receive the signoff of both home-state senators, a courtesy for a nomination to move forward that was tossed aside in late 2017 by Sen. Chuck Grassley, R-Iowa, then the Judiciary Committee’s chairman. Sen. Lindsey Graham, R-S.C., Grassley’s successor in that role, carried the decision forward. Crucially, that meant Trump did not have to compromise on his appellate picks in states with a Democratic senator.
Just two found unanimous support across the aisle, a sharp drop from both the Obama and Bush nominees.
According to a tally by the Heritage Foundation, a conservative policy group, Trump’s appointees across the judiciary have drawn three times more “no” votes in the Senate than all confirmed judges in the 20th century combined. So far, Trump has appointed more than 185 federal judges.
On the appellate bench, Trump’s appointees have drawn nearly twice as many “no” votes as did those of Bush and Obama, The Times’ analysis shows.
In a history-making intervention, one of Trump’s appellate picks was confirmed only when Vice President Mike Pence broke a 50-50 deadlock. It was Pence’s 12th tiebreaking vote in the Senate, the most of anyone in his office since the 1870s, and the only time a vice president installed a nominee to the bench.
The judge, Jonathan Kobes, had been working on Capitol Hill as an aide to a Republican senator. He was rated unqualified by the American Bar Association, which questioned his ability to reflect “complex legal analysis” and “knowledge of the law” in his writing.
He got the job anyway, with Grassley proclaiming on Twitter in December 2018 that the confirmation had “made HISTORY.” Kobes became Trump’s 30th confirmed appointee to the appellate bench.
Democrats, powerless to block the nominees, have been sidelined as angry bystanders.
Sen. Dianne Feinstein of California, the ranking Democrat on the Judiciary Committee, called Trump’s appellate appointees “far outside the judicial mainstream,” adding that she believed Republicans were using them to advance “a particular agenda.” She voted against all but 14 of the appellate nominees.
”Americans are certainly aware of Supreme Court nominations,” Feinstein said in a statement to The Times, “but most don’t pay close attention to the lower courts, which can have an even more direct effect on their lives.”
From Fringe to Mainstream
Trump has staked his presidency on upending conventions, and his approach to the judiciary breaks sharply with that of past presidents.
He unapologetically views judges as agents of the presidents who appointed them — calling out an “Obama judge,” for instance, for ruling against the Trump administration in an immigration case. He frequently attributes his popularity among Republicans to his judicial appointments. And he has not been shy about politicizing the process.
“95% Approval Rating in the Republican Party,” he wrote on Twitter in January. “Thank you! 191 Federal Judges (a record), and two Supreme Court Justices, approved. Best Economy & Employment Numbers EVER. Thank you to our great New, Smart and Nimble REPUBLICAN PARTY. Join now, it’s where people want to be!”
In his State of the Union address in February, he bragged about his judicial appointments, promising, “We have many in the pipeline.” A week later, the Senate approved his 51st nominee to the appeals bench; 41 others now await votes for the lower courts.
While federal judges of all stripes take an oath of impartiality and reject the notion that they do a president’s bidding — Chief Justice John Roberts recently described an independent judiciary as “a key source of national unity and stability” — the examination by The Times shows that the Trump administration has filled the appellate courts with formidable allies who fought for a range of issues important to Republicans.
Democratic presidents have also sought out reliable political allies when filling some judicial posts, but Trump’s approach has left little to chance.
His appointees include former litigators who argued against legalizing same-sex marriage; advocated blocking Medicaid reimbursements to health care providers performing abortions; argued that corporations with religious owners could not be required to pay for insurance coverage of certain forms of birth control; and supported the Trump administration’s choice to include a question about citizenship on the census.
In the past, many conservatives have been left disappointed when judges appointed by Republican presidents were seen to have lost their resolve on the bench. Now what matters most with Trump’s appointees, said Josh Blackman, a professor at the South Texas College of Law Houston, is that they come with rock-solid conservative resumes.
“You have to demand a paper trail — no more skeleton nominees,” said Blackman, who advised the presidential campaign of Sen. Ted Cruz, R-Texas, and is a strong supporter of the Trump approach.
One standout appointee, Kyle Duncan, now an appellate judge in New Orleans, fought to uphold Louisiana’s gay-marriage ban before the Supreme Court, defended a North Carolina law restricting transgender people from using their preferred bathrooms and represented Hobby Lobby when it sued the federal government over the requirement that it provide employees with insurance coverage for some birth control.
He had worked as general counsel of the Becket Fund for Religious Liberty, a legal advocacy group that has been a strong defender of the religious right.
Responding to questions from senators about the North Carolina law, he said he had been “advancing not my own personal beliefs but legal arguments on behalf of my client’s interests, just as I have done in every case to the best of my ability.”
Judge Stephanos Bibas, a Trump appointee to the federal appeals court in Philadelphia, last September emphasized the independence of judges once they took the bench, saying, “We certainly are not viewing ourselves as members of teams or camps or parties.”
Many of the appointees have elite credentials, with nearly half having trained as lawyers at Harvard, Stanford, the University of Chicago or Yale, and more than a third having clerked for a Supreme Court justice, surpassing the appointees of both Obama and Bush.
But Trump’s appellate picks often have less judicial experience, The Times found. About 40% previously served as a judge, compared with more than half of the Bush and Obama appointees.
Trump named some of his judges before they received a rating from the American Bar Association, a group Republicans have long viewed as biased against their nominees. Three deemed unqualified were confirmed — a step not taken at the appellate level since at least 1975, when a former governor of Connecticut nominated by former Presidents Richard Nixon and Gerald Ford joined the bench, according to Sheldon Goldman, a political scientist focusing on the judiciary.
Trump is betting that the judges will back Republican priorities for a long time: The median age of the appointees is 5 1/2 years younger than it was under Obama, and 3 1/2 years younger than under Bush. One-third were under 45 when appointed, compared with just 5% under Obama and 19% under Bush. And countering a trend of increasing diversity on the appellate bench under Obama, two-thirds of Trump’s appointees are white men.
They are also well off: Their median net worth is nearly $2 million — adjusted for inflation, that is on a par with the worth of Obama appointees, and about a half-million dollars more than that of Bush appointees.
Perhaps most telling, all but eight of the new judges have had ties to the Federalist Society, a legal group that has been central to the White House’s appointment process and ascendant in Republican circles in recent years for its advocacy of strictly interpreting the Constitution.
Nearly twice as many appointees have had ties to the group as did those of Trump’s most recent Republican predecessor, Bush. Early this year, a proposal was circulated among federal judges by the court system’s ethical advisory arm that would ban membership in the group.
The Trump appointees turned out in big numbers at its national convention in Washington in November. Many participated in panel discussions and attended a black-tie dinner, where Don McGahn, the former White House counsel for Trump, extolled the group’s extraordinary trajectory.
“We have seen our views go from the fringe, views that in years past would inhibit someone’s chances to be considered for the federal bench,” he said, “to being the center of the conversation.”
Willett, the former Texas Supreme Court justice, had a paper trail replete with political connections and ties to prominent Texas Republicans when he was nominated to the federal bench in 2017.
He had raised more than $4 million for two campaigns for the state bench, more than half of it from lawyers, lobbyists and oil interests, according to the National Institute on Money in Politics. He also had more than 25,000 posts on Twitter that often focused on current affairs and Republican politics, even some jabbing Trump as a candidate.
During the last Republican administration, under Bush, he had advised judicial nominees “to bob and weave, be the teeniest tiniest target you can be,” Willett said during a speech in 2010, adding, “You want to be as bland, forgettable and unremarkable as possible.”
No more. The Trump approach has translated into a new breed of appellate appointees with open experience in ideological and political warfare.
John Malcolm, a conservative legal scholar at the Heritage Foundation, said he was looking for “people who have the strength of their convictions.” He drew up a list in 2016 of recommended Supreme Court nominees that was embraced by Trump.
About three-quarters of Trump’s appellate appointees donated to political candidates and causes, a significantly higher proportion than Obama’s and slightly ahead of Bush’s, according to an analysis of data from the National Institute on Money in Politics and the Center for Responsive Politics.
They were also more likely than the Obama and Bush nominees to have been affiliated with an election campaign in the decade before their appointment.
Duncan, previously a renowned conservative litigator, had volunteered for the 2016 presidential campaign of Sen. Marco Rubio of Florida and was a donor and poll watcher for Mitt Romney’s 2012 presidential bid.
At least seven of his fellow appointees had ties to the Trump administration itself. Rao had run a regulatory office in the White House. Judges Steven Menashi and Gregory Katsas had worked in the office of the White House counsel. Judge Patrick Bumatay had been a counselor to the attorney general, while Judge Lawrence J.C. VanDyke had been tapped for the Justice Department’s Environment and Natural Resources Division. Katsas and Judge Andrew Brasher had volunteered for Trump’s transition team. And Judge Chad Readler had done legal work for Trump’s 2016 presidential campaign.
Readler later became acting head of the Justice Department’s civil division, putting him in charge of defending nearly every high-profile presidential policy that came under attack in the courts.
Other appointees had held state jobs that showcased their conservative — and sometimes partisan — credentials.
Nearly a quarter of them worked in the office of a Republican state attorney general. That was about triple the percentage of Bush nominees, The Times found. Mostly, they served as solicitors general or their deputies, putting them on the front lines in court battles over contentious state laws.
At least eight actively fought against legalizing same-sex marriage, and at least as many argued for immigration positions now embraced by the Trump administration. At least 18 sought to limit access to abortion or contraception.
Some nominees amassed their conservative credentials by filing friend-of-the-court briefs, weighing in on cases especially important to Republicans.
VanDyke, appointed to the 9th Circuit in Nevada, had been prolific. As solicitor general of Montana, according to published emails, he encouraged the state’s attorney general to support a 20-week abortion ban in Arizona, to defend a professional photographer’s refusal to shoot a same-sex commitment ceremony in New Mexico and to challenge a ban on semi-automatic weapons in New York.
The fact that Montana was not directly affected by the cases did not matter. In an email to the solicitor general in Alabama — who would also be named to the appellate bench by Trump — he wrote about the New York ban: “Semiautomatic firearms are fun to hunt elk with, as the attached picture attests :).” The Great Falls Tribune, which obtained the emails, published a photo of the now-judge in hunting garb.
Judge Michael Park, another appointee, had come to the support of the Trump administration in its unsuccessful effort to add a citizenship question to the census. As a private lawyer representing the Project on Fair Representation, a conservative group, he argued in 2018 that the question was justified, calling it “immensely helpful to redistricting and voting rights litigation.”
The Supreme Court disagreed. Four months after he weighed in, it was announced that Trump intended to nominate him to the U.S. Court of Appeals for the 2nd Circuit in New York.
Some of Trump’s choices for the appeals courts had already landed on his shortlist for Supreme Court nominations. Once on the bench, they quickly confirmed that they could shake things up.
Three on that shortlist — Judges Joan Larsen, David Stras and Amul Thapar — were among those identified by The Times as having a penchant for disagreeing with Democratic nominees. They voted differently from those judges 23% of the time, but from judges appointed by Republican presidents only 4% of the time.
Larsen and Stras had been state supreme court justices named by Republican governors in their home states. Thapar was elevated by Trump from a federal district court in Kentucky, where he had been appointed by Bush.
Unlike lower courts, the appellate courts, which review other courts’ decisions, do not have juries. Instead, cases are largely decided by panels of three judges, usually selected randomly from all of the judges in the circuit.
There is a culture of consensus in most circuits, and in the cases reviewed by The Times, appellate judges of both parties agreed with one another the vast majority of times. But when they did not, the Trump appointees stood out.
On panels that had members appointed by presidents of the same party, dissent occurred just 7% of the time. The rate jumped to 12% on panels that included a mix of judges appointed by both Democrats and Republicans.
But when a Trump appointee wrote an opinion for a panel with a lone Democrat, or served as the only Republican appointee, the dissent rate rose to 17% — meaning the likelihood of dissent was nearly 1.5 times higher if a Trump appointee was involved.
Writing a dissent marks a bold break from fellow members of the bench, experts say, and by definition sets the judge apart. The dissenting opinions can also inform future legal arguments and cases.
“You’re going to get some judges who will bite their tongue and say, ‘These are my colleagues — I’m not going to rock the boat unless I feel strongly about it,’” said Russell Wheeler, a visiting fellow at the Brookings Institution and a former deputy director of the Federal Judicial Center, the research and education arm of the federal court system.
In other instances, however, judges “go in slashing and burning” with no regard for comity — or with an eye to drawing attention to themselves, he said. “Some of them obviously are going to be thinking about the next vacancy on the Supreme Court,” Wheeler said.
In a speech in 2017, McGahn, the former White House counsel and a main driver of the Trump selection process, said “judicial courage” was as important as judicial independence.
The Times analysis included 10,025 opinions of three-judge panels from 2017 through 2019 that were tagged as “published, written and signed” in the federal center’s integrated case database.
It covered more than 1,975 cases involving at least one Trump appointee. Because many of Trump’s earliest appointments occurred in appellate courts dominated by judges named by Republicans, more than half of those cases did not involve panels with judges appointed by a Democrat.
Of the 125 cases in which a Trump appointee wrote a dissent or an opinion eliciting dissent, about half involved civil rights or criminal matters. The others touched on a wide variety of topics, from transgender rights to pregnancy discrimination to the limits of police powers.
In one instance, a Trump appointee joined with a Bush appointee to strike down a key part of the Affordable Care Act. A Democratic-nominated judge dissented.
Amy Coney Barrett, another judge on Trump’s Supreme Court shortlist, was among the new appointees who wrote a dissent cited by conservatives.
Barrett, a noted originalist, once served as a clerk to former Justice Antonin Scalia. But she stood out among the Trump appointees not by disagreeing with Democratic appointees but by taking on two judges named by former President Ronald Reagan, a Republican.
The subject was Second Amendment gun rights, and Barrett took a broader view than her colleagues.
The owner of a therapeutic shoe-insert company had pleaded guilty to mail fraud and, as a felon, was barred from owning a gun. He objected, claiming the penalty was unconstitutional.
The two Reagan appointees upheld a lower-court ruling against the man. Their decision was based in part on the notion that governments banned felons from owning firearms because they were considered more likely to abuse them.
But in dissenting, Barrett argued that lawmakers could prohibit only violent people from owning firearms, and that the government had not proved that a nonviolent felon would turn violent.
“History does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons,” she wrote.
A dissent by another new appointee, Rao, the former Trump administration official, staked out territory important to the president and his allies.
Two appellate judges, both appointed by Democrats, ruled that Trump’s accountants had to comply with a congressional subpoena for eight years of his financial records.
Rao, who holds the appellate seat vacated by Justice Brett Kavanaugh, questioned whether Democrats in the House of Representatives had overshot their authority. At a hearing on the case, she suggested the Democrats were, in effect, seeking the “regulation of the president.”
In her 67-page dissent, she wrote that the subpoena went beyond Congress’ authority, and that the documents in question could be obtained only in an impeachment inquiry.
She also chided her fellow judges for allowing Congress to conduct “a roving inquisition over a co-equal branch of government,” suggesting they had chosen to fixate on worst-case scenarios.
The case has been appealed to the Supreme Court, where two Trump appointees, Kavanaugh and Gorsuch, will help determine its fate.
Tipping the Balance
The push in the Senate last November to confirm a White House lawyer for a top federal judgeship in New York unnerved Democrats.
The lawyer, Steven Menashi, had a trail of inflammatory writings about feminism and multiculturalism. He had declined to answer specific questions about his role in the Trump administration on family detentions and education policy.
And he had managed to get a confirmation vote only because Republicans did away with a courtesy rule letting home-state senators — in this case, Kirsten Gillibrand and Chuck Schumer — block nominees they found unworthy. Schumer had described him as “a textbook example of someone who does not deserve to sit on the federal bench.”
Not only did he get his seat on the 2nd Circuit, but his appointment marked a signature moment in Trump’s bid to tilt the nation’s appellate courts to the right: Menashi’s confirmation flipped the balance toward Republican appointees in a circuit encompassing three states — New York, Connecticut and Vermont — dominated at nearly every level by Democrats.
Judges named by Trump have forged new majorities in two other circuits — the 3rd and the 11th. And they have come close in the nation’s largest appeals court, the 9th, based in San Francisco, which has long issued rulings favorable to liberal causes.
The unequal split between Democratic and Republican appointees can give the circuits distinct reputations as liberal or conservative.
Trump has called the 9th Circuit “out of control” and a “complete & total disaster,” and he has suggested that some of its decisions related to immigration and the border have threatened national security.
In one case, the court ruled that the Trump administration could not erase Obama-era protections for so-called Dreamers, children brought into the United States illegally.
In another, it blocked the administration’s effort to speed up the deportation of asylum-seekers. It also rejected Trump’s policy restricting travel from eight countries, six of them largely Muslim.
“Every case that gets filed in the 9th Circuit, we get beaten,” Trump complained in 2018. “It’s a disgrace.”
At the close of the Obama administration, 18 judges on the circuit had been appointed by Democratic presidents, seven had been named by Republicans and four seats were vacant. Through his appointments, Trump has whittled the majority held by Democratic appointees to just three, making it less likely that a liberal philosophy can dominate so thoroughly.
Allies of the president have celebrated. In emails to supporters, the National Organization for Marriage, a group established to fight the legalization of same-sex marriage, lauded the change “from the most liberal court in the country to one that is much more balanced.”
Brian S. Brown, president of the group, heralded that Trump was remaking the court and others across the country. “Judges will be with us for a lot longer than any politician who holds office,” he wrote.
Conservatives have also celebrated Trump appointees in circuits where the balance of power has not shifted. Their votes have proved significant in so-called en-banc hearings — when a decision by a panel of appellate judges is reviewed by a larger group of judges.
In 2014, a Louisiana law required doctors performing abortions to be able to admit patients to a hospital within 30 miles of their clinic. Opponents of the law predicted a chilling effect on access to abortions. Those in favor argued that it protected women seeking abortions by making sure doctors were competent.
The case, now being decided by the Supreme Court, has been playing out in federal courts for years. A district court judge struck down the law, but was reversed by a divided three-judge panel of the 5th Circuit. When opponents of the law asked all judges of the circuit to hear an appeal, the request was denied, 9-6, with four judges appointed by Trump joining the majority.
At an en-banc hearing in Missouri, four Trump-appointed judges in the 8th Circuit joined a 6-5 decision that loosened disclosure requirements for political activists.
In the case, a man who ran a nonprofit advocating conservative causes had sued Missouri officials over a lobbying registration law he deemed unconstitutional. He was not a lobbyist, he argued, addressing lawmakers often but not spending or receiving money for it. A lower court and a three-judge appeals panel had sided with the state, requiring him to register out of transparency.
Among the four Trump appointees who overturned that ruling were Kobes, the former Senate aide who had been confirmed when Pence offered up a tiebreaking vote; Stras, who was on Trump’s shortlist for the Supreme Court; and Judge L. Steven Grasz of Nebraska.
Grasz, in the year he was nominated to the appeals court in Nebraska, had sat on the board of the anti-abortion Nebraska Family Alliance and served as assistant secretary of Nebraskans for the Death Penalty.
As he seeks reelection, Trump has showcased his role in fulfilling the Republican judicial agenda. One afternoon last November, he gathered an array of Republican leaders and conservative judicial activists to celebrate his success.
“I’ve always heard, actually, that when you become president, the most — single most — important thing you can do is federal judges,” he said.
How the Numbers Were Calculated: In examining the president’s judicial appointments, The New York Times compiled two databases of information about judges who were named to the U.S. Court of Appeals by Trump and his predecessors. One focused on the professional and political backgrounds of judges appointed by Trump, Obama and Bush. The other analyzed published opinions in the court’s 12 regional circuits to gain insights into ruling patterns and rates of dissent.
The Biographies: The Times compared the appellate judges’ experiences outside the court. All told, there were 168 appointees — 51 by Trump, 55 by Obama and 62 by Bush. The database drew primarily on biographical questionnaires the appointees had submitted to the Senate Judiciary Committee, obtained from staff members, the Congressional Record and other sources. They listed jobs and internships held since college, judicial clerkships, club memberships, affiliations with political campaigns and other information. Some judges volunteered more detail than others. Separately, campaign finance data was compiled from two sources: the National Institute on Money in Politics, which has access to state donations since 2000 and federal ones since 2010, and the Center for Responsive Politics, which tracks federal donations beginning in 1989. In searching the donations, The Times sometimes found matches by using variations of judges’ names, including maiden names, as well as other relevant information like employment. Calculations of partisan donations were based on federal contributions to political candidates or causes of the same party as the judge’s appointing president. Past political activity was measured more broadly and included work for politicians of any party; volunteer or paid work for political campaigns of any party; memberships affiliated with any party; donations to campaigns of any party; participation as a candidate for any party; references to “Republican” or “Democrat” in any answer in the questionnaire; and work in a political post in the federal government, including political duties assigned to a federal employee. The age of judges on their appointment date was based on years of birth provided by the Federal Judicial Center, the official clearinghouse for court research.
The Rulings and Dissents: The database includes more than 10,000 opinions published from 2017 through last year in the 12 regional circuit courts. The 13th appeals court, the Federal Circuit, hears mostly intellectual property cases and has no Trump appointees. The case list was published by the Federal Judicial Center. Only cases designated “published, written and signed” were included in the analysis, because they carry the weight of precedence and represent the most legally impactful work. For consistency, all of the cases involved a standard three-judge panel with a named opinion author. For every case, The Times parsed the text of the opinion to identify the judges, whose names are redacted from the judicial center’s data. Additional information about the judges was obtained by joining the case data to a separate biography data set kept by the center. The data was analyzed in two ways: first, to determine how often cases involved a dissent, and second, to determine how often individual judges agreed or disagreed with their two colleagues on a panel. On the case level, the data showed that when a judge named by Trump served in a pivotal role — as the author of an opinion on a panel with only one Democratic appointee, or as the only Republican appointee on a panel — the rate of dissent increased significantly. For individual judges, the analysis split each panel into three pairings. If the case was unanimously decided, all judges were deemed to have agreed. If one judge dissented, that judge was deemed to have disagreed with the other two. While judges appointed by presidents of different parties were more likely to disagree than judges appointed by presidents of the same party, the difference was far more pronounced for many, though not all, of the new Trump appointees, the analysis found. There were caveats to the findings. Some of the circuits have a higher dissent rate overall, for example, and some circuits appear more often in the database because they conduct a higher share of their work in the form of published opinions. Even accounting for those factors, the findings were supported by a separate regression analysis, which accounted for other variables, including the circuit hearing the case, the topic before the court, the type of appeal and whether the ruling affirmed or overturned a decision by a lower court.
This article originally appeared in The New York Times.
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