The Trump Presidency, over the last three years, has continuously attempted to destroy democratic norms that have existed for much of the country’s existence. Some of these attempts may have already proven to be successful. One cherished institution in America is the independent court system. However, the foundation of this institution is not as strong as one might assume. Thus, Trump’s attempts to alter this institution now may make it extremely difficult to restore in the future. It is actually a fairly recent development that federal judges are expected to be free from political ties. As late as 1968, President Johnson sought the counsel of federal judges and built a close relationship with Justice Abe Fortas. It was not until Watergate that the government saw drastic re-imagination of government practices and ethics, one outcome being that federal judges were to keep their noses out of politics.[1]
Recently, this norm has been threatened by President Trump and his administration, sparking concerns that this norm may be destroyed forever and democracy may erode along with it. The independent judiciary is currently facing blatant attack, something that has not occured in decades. The Supreme Court has a conservative majority, and Garrett Epps writes that these conservative justices, along with Chief Justice Roberts, have “taken on the role of Trump’s enforcer, ensuring that controversial priorities such as the border wall and the immigration ‘public charge’ rule take effect even before they can be fully considered by lower courts”. [2] Instead of serving as a check on presidential power, the Supreme Court is now just another avenue where Trump can ensure his policies and power survive. This is characteristic of stealth authoritarianism, a term coined by Ozan Varol, which “erodes mechanisms of accountability and weakens horizontal and vertical checks and balances”. [3]
Stealth authoritarianism is the process of using legal mechanisms that already exist in democracies in order to achieve anti-democratic ends. With this definition, anti-democratic ends refers to the erosion of “partisan alternation,” or the cycling of political power among more than one party. [3] Trump is packing the courts with conservative judges, which may make it challenging to alternate power to the Democrats in the future. A legal mechanism that Trump is using is the judicial appointments process. Trump is attempting to use his power to appoint federal judges to consolidate his power and ensure that the Republican party can pass its conservative policies. Democratic institutions are serving as the means to achieve anti-democratic goals.
Trump is appointing judges to powerful federal appeals courts at an unprecedented rate. Over the past three years, Trump has named nearly as many appellate judges as President Obama had appointed over two terms. Most of the 50 new appointees are white men with a conservative agenda. Seven of them previously had jobs with the Trump campaign or the Trump administration. According to the New York Times, “[J]ust four had no discernible political activity in their past, and several were confirmed in spite of an unfavorable rating from the American Bar Association — the first time that had happened at the appellate level in decades”. [4] Clearly, Trump is appointing judges that he believes will serve as policy agents and further the Trump agenda without much hesitation.
Professional qualifications are seemingly insignificant to Trump; he only cares about ideology. Just a few days ago, he appointed 37-year old Justin Walker to a seat on the powerful U.S. Court of Appeals for the District of Columbia Circuit. Walker has close ties to Senate Majority Leader Mitch McConnell, who praised Trump’s decision to nominate “a rising Kentucky star, born and raised in Louisville, to refresh the second-most important federal court in the country.”[5] Walker actually drew a “Not Qualified” rating from the American Bar Association last year. This nomination was met with backlash from those that felt Walker was not the right choice; however, his nomination was ultimately approved, 50-41. This nomination, although technically legal, is a way for Trump to erode the democratic norm of independent courts.
This deliberate attempt by Trump to undermine the independence of federal courts threatens another fundamental democratic norm: forbearance. Forbearance is the idea that politicians should exercise restraint in deploying their institutional prerogatives. With forbearance, political leaders do not exercise their institutional powers to the fullest extent, even if legal. This norm is important to respect because it ensures that the repeated game between political actors — that is, democracy — continues. This game can only continue if the other “team” is not antagonized and is accepted as a legitimate rival. [6]
Trump does not accept Democrats as legitimate rivals and he even insults and threatens judges and jurors that disagree with him. Judge James Robart of the Western District halted Trump’s first travel ban. The president responded by dismissing Robart as a “so-called judge.” Trump also threatened to dismantle the court after the Ninth Circuit agreed with Robart. This is just one instance of such actions. He has also threatened jurors who served on cases with outcomes unfavorable to Trump or his allies, leaving these jurors to feel unsafe and to appear illegitimate to the public.[2]
There is no question that Trump is attempting to consolidate his power and place policy agents in an institution that is supposed to be free from political influence. This may pose a threat for American democracy. However, it ultimately depends on how these appointed judges decide to respond. According to Varol, “[J]udicial autonomy can be a double-edged sword for the incumbent regime. Judiciaries may disappoint the leaders that established them or appointed their members. Judicial institutions can turn the relative autonomy provided to them against the political elites and challenge their policies and shed light on stealth authoritarian practices”. [3] It will prove to be important to watch closely how these appointed judges respond. Will they actually hold Trump accountable for the anti-democratic policies he seeks to further? Or will they allow him to continue to consolidate his power in efforts to be re-elected in November?
[2] Epps, Garrett. “Trump Is at War With the Whole Idea of an Independent Judiciary.” The Atlantic, March 4, 2020.
[3] Varol, Ozan. 2015. “Stealth Authoritarianism.” Iowa Law Review 100(4)
[4] Eder, Steve, Rebecca Ruiz, Robert Gebeloff, & Ben Protess. “A Conservative Agenda Unleashed on the Federal Courts.” The New York Times, March 14, 2020.
[5] Daly, Matthew. “Trump Nominates McConnell Ally to Powerful Appeals Court.” The Washington Post, April 3, 2020.
[6] Levitsky, Steven & Daniel Ziblatt. 2018. How Democracies Die. New York: Crown.
It is frightening and alarming to witness the quick denigration of decades-long held norms via the Trump administration. I think that the problem with Trump’s actions and the return to partisan courts is not necessarily the fact that Trump is a conservative, but the fact that Trump is using the courts to further a far-right agenda. While many people could argue that partial/partisan judges were a norm for even longer than impartial judges, I think the problem comes with how authoritarian Trump has been when it comes to his administration and other Republican legislators across the country. While there is the possibility that Judges and the judicial system may remain relatively independent from Trump, it is hard to imagine that judges would refuse to be loyal to Trump in an icreasingly polarized society.