During the year that Donald Trump has been in office, plans have been made to reshape the federal appeals court with younger judges whose beliefs are more conservative. Trump, who entered the office with twenty one seats to be filled, has appointed eight appellate judges within the past year, while Senate Judiciary Committee Chairman, Charles E. Grassley has scheduled three confirmation hearings with two appellate nominations. According to the New York Times, the action taken by republicans in the past year is more than Obama took during his two terms in office. As the judiciary is altered at a rapid pace, it is possible that this type of swift change to the judicial branch can be threatening to democracy.
According to scholars Douglas M. Gibler and Kirk A. Randazzo, the judiciary is able to protect the democratic system of government and prevent regime change as long as a certain amount of judicial independence is in place. This judicial independence can serve as a guard against authoritarianism by trusting that judges will act independently and without outside influence. Tools like lifetime appointment let judges implement decisions based solely on their own different beliefs without having to consider the repercussions on their status or employment.
Trump is nominating new appellate judges who are primarily white males with conservative stances on many issues. Since the nominees and appointees have viewpoints that line up with those of the executive branch, Trump’s control can be extended into the judicial branch to some degree. The judiciary with similar opinions to his own are less likely to disagree with his preferences. Based on the work of Nancy Burmeo, this could be a sign of executive aggrandizement, a trend associated with democratic backsliding.
Additionally, adding a great number of judges within a narrow time frame makes it difficult to maintain an established judiciary.Established judiciaries have many roles to play when it comes to the prevention of backslide. They can prevent an executive from attaining more power during a time of national distress and are less likely to be swayed by the influence of the legislative and/or executive branches. Established judiciaries generally have been considered to be independent for three or more years. Age is a factor. Since a number of new judges will be introduced, many of whom are more likely to side with executive opinions, it will be difficult to consider the appeals court as established. This increases the risk of power abuses from other branches, threatening democracy.
Another threat that can arise is that of polarization. If Trump successfully packs the court with republican judges but democrats eventually win back power in the house and senate there will be what the New York Times refers to as “an ideological split”. Issue position polarization can reach the public as social polarization. If the general public sees that congress is more heavily composed of members of one political party over another, it can cause feelings of underrepresentation. According to Liliana Mason, such emotions can lead to increased polarization, stronger identification with their party or group, and can lead to biased and emotion driven decisions. For example, people might be more likely to support a leader that acts undemocratically, but supports policies that their group wants to see implemented.
In conclusion, the action Trump is taking to attempt to reshape the judiciary does pose a threat to some aspects of democracy. The risk of executive aggrandizement increases, which could allow the president to gain power through the judicial branch. It also is likely that the judiciary will face some difficulty establishing itself as independent, reducing the system’s legitimacy and making outside influences from other branches of government a potential problem. Additionally, in a long term scenario, issue position polarization and social polarization can affect the public and do some damage to the democratic system of government. While these are threats that should be taken into consideration, they are also worst case scenarios. In the past, presidents like Nixon and FDR have nominated a larger than average number of judges or have packed courts. These actions were harmful to individual aspects of democracy but did not trigger a fully fledged democratic backslide into an authoritarian regime at the same speed that an executive coup or a coups d’etat could.