Kavanaugh, Barrett, and Trump's judicial legacy
Trump's judges will far outlast the chaos of his administration
I recently received an email from Marie Griffith, the editor of Religion and Politics. She told me that an essay I had written for their website would be published in a special anniversary print journal, alongside other essays written in the past few years by scholars, journalists, and religious leaders.
The essay in question discussed the nomination of Amy Coney Barrett to the United States Supreme Court, with an eye toward what her nomination meant to Christian conservatives. You can read the essay here. Reading through it again, over two years later, got me thinking about Donald Trump's (and Senate Majority Leader Mitch McConnell’s) successful transformation of the judicial branch of our government during Trump’s one tumultuous term as president.
The Trump presidency will be remembered for many things, but history should judge his reshaping of the federal judiciary as the most consequential. Yes, January 6 will live on as the most infamous moment in his (or any) presidency, but the Trump administration’s laser focus on confirming young conservative judges will be paying dividends several decades from now. In four years Trump nominated and confirmed hundreds of federal judges to the district and appellate courts. Indeed, by the end of his presidency Trump had filled roughly a quarter of the judiciary.
Still, most of the country's attention went to Trump's Supreme Court appointments. Each was controversial in some way. Neil Gorsuch, Trump's first nominee, followed a year-long Senate blockade of Barack Obama's nominee for the vacancy.1 Brett Kavanaugh's confirmation hearing yielded allegations of high school sexual assault. And Barrett's nomination took place just weeks before the 2020 election, rushed through following the death of liberal stalwart Ruth Bader Ginsburg.
Gorsuch's appointment did little to change the ideological composition of the Court; he was replacing another conservative, the late Antonin Scalia. Kavanaugh replacing Anthony Kennedy was more consequential, as Kennedy, while a conservative, had a strong libertarian streak that yielded some of the Court’s most notable (and liberal) decisions on abortion, LGBTQ rights, and privacy. And Barrett's confirmation cemented a conservative super majority on the Court, replacing the most iconic liberal jurist of the past hundred years with a social conservative in the mold of Scalia, for whom Barrett once served as a law clerk.
Here’s what I wrote about Barrett’s confirmation at the time:
If confirmed, she would transform the Court’s ideological balance in a way not seen for generations. Just as importantly, though, her confirmation would give another major victory to the conservative Christians who have remained steadily behind Trump during four tumultuous years. It would be a fitting parting gift to this bloc in case of a Joe Biden victory in November, shoring up their defenses in the cultural, political, and legal battles to come.
And from later in the essay:
Adding her to the Supreme Court would be icing on the cake for the conservative Christians who have held their noses at the repugnant aspects of the Trump administration. Indeed, for this group, it may very well have made this chaotic administration worth it after all.
This was a common theme I picked up on during these nominations, especially Kavanaugh’s and Barrett’s. In another Religion and Politics essay, this time on Kavanaugh’s nomination (before the assault allegations emerged), I wrote that Trump had fulfilled his end of the bargain with the Christian conservatives who carried him to victory in 2016:
Christian conservatives may still be a potent voting bloc, but they are becoming more and more of a cultural minority. As a result, they will find themselves increasingly turning to the courts to protect long-cherished rights and to deliver on sought-after cultural goals. This new reality helps explain their bargain with Donald Trump: With Kavanaugh poised to give the Supreme Court a more pronounced rightward lean, Christian conservatives should anticipate future victories on a variety of issues.
I concluded that essay as follows:
When Donald Trump is long gone and the controversy surrounding his time in office is taught in history books, Brett Kavanaugh may very well still be one of nine votes on the nation’s highest court. For Christian conservatives, with the Court on the verge of a solid conservative majority and poised to render favorable judgments on religious liberty and abortion, this deal is increasingly looking like a good one.
Donald Trump may or may not be president again.2 But his judicial appointments—including a third of the Supreme Court—will be with us long after the next presidential election (and the one after that, and after that, and after that…). This will continue to drive progressives crazy, instigating calls for reforms to the nation’s judiciary. But for conservatives, especially those who couldn’t stomach the day-to-day awfulness of the Trump years, these appointments will be of some consolation.
And as far as consolations go, Gorsuch, Kavanaugh, and Barrett are big ones.
That nominee, Merrick Garland, now serves as U.S. Attorney General, and is now overseeing more than one ongoing investigation into—you guessed it—Donald Trump.
Given his actions leading up to, on, and after January 6, I sincerely hope he isn’t.