But thanks to Senate Majority Leader Mitch McConnell of Kentucky, Trump will have an outsized role in choosing the federal judges who administer the rule of law, not only for the rest of his time in office but for decades to come.
That role got even bigger Wednesday when Justice Anthony M. Kennedy, 81, announced that he would retire. The moderately conservative Reagan appointee has often been a swing vote, and his departure gives Trump a chance to strengthen the court's 5-4 conservative majority. That process will create an epic battle in Washington that could influence the November elections.
McConnell's 33 years in the Senate have been focused on two things: Making it easier for special-interest money to influence elections, and rigging the federal judiciary in favor of big business and right-wing ideology.
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McConnell's boldest move was his unconstitutional 2016 decision to steal a U.S. Supreme Court appointment from former President Barack Obama. That paid big dividends in the past couple of weeks with a series of 5-4 court rulings.
One ruling upheld Trump’s twice-rewritten travel ban targeting Muslim nations. Conservative justices said the president’s statutory authority to control immigration outweighed his history of incendiary comments against Muslims.
Another ruling overturned a California law requiring “crisis pregnancy centers” that oppose abortion to give clients information about state abortion services. Dissenting Justice Stephen Breyer pointed out that the majority decision was inconsistent with a previous ruling.
“If a state can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive health care about childbirth and abortion services?” Breyer asked.
Another 5-4 decision largely upheld congressional and legislative election districts in Texas. Lower courts had ruled that Republicans had gerrymandered them in ways that illegally discriminated on the basis of race.
And yet another 5-4 ruling overturned a 40-year-old Supreme Court precedent by saying public employee unions can't require collective bargaining fees from workers who don't want to join, even though the workers benefit from the results of that bargaining.
The deciding vote in all of those cases was Justice Neil Gorsuch, a strong conservative appointed by Trump. He wouldn’t be on the court had not McConnell refused to consider Obama’s appointment of centrist judge Merrick Garland after the sudden death of Justice Antonin Scalia. Obama was twice elected president and still had 10 months to serve, but McConnell had the political clout to ignore the Constitution and all previous practice.
Most Americans, including nearly a quarter of Republicans, thought McConnell's power grab was wrong, according to a Quinnipiac University poll at the time. Had a Democrat pulled such a stunt when McConnell was in the minority, he would have screamed bloody murder. But nobody in Congress is more hypocritical than Mitch McConnell.
As the Washington Post reminded us this week, Trump may not have gotten his narrow victory margin — 78,000 votes in three states — had it not been for McConnell’s dirty trick. Trump made Supreme Court nominations a key campaign theme, and 26 percent of Trump voters told pollsters that it was the most important factor in their vote, compared to only 18 percent of Clinton voters.
After the court rulings were handed down Tuesday, McConnell took a victory lap on Twitter, posting a photo of himself with Gorsuch.
Things will only get worse unless Democrats retake control of the Senate in November, which would be difficult given the seats up for election. After Republicans took control of the Senate in 2014, McConnell obstructed Obama’s judicial nominees, leaving Trump more than 100 judicial vacancies — twice as many as Obama inherited in 2009 when McConnell griped about the Democratic majority obstructing George W. Bush’s nominees.
Since Trump’s election, McConnell has worked closely with the administration to fill these lifetime jobs on the federal bench with young, deeply conservative lawyers. He even changed a traditional rule that allowed senators to block judicial nominees in their own state. Imagine how loud McConnell would have screamed if Democrats had done that to Republicans when they were the minority.
Meanwhile, the American Bar Association, which has had an influential role in assessing the qualifications of federal judicial nominees since the Eisenhower administration, have been largely ignored in favor of the Federalist Society, a conservative group of lawyers.
Some Trump nominees have been confirmed even though the ABA considered them unfit. Matthew Petersen, nominated for a seat on the U.S. District Court for the District of Columbia, withdrew his nomination after he was unable to answer basic legal questions at his confirmation hearing. Even Republican senators made fun of him.
Not every Trump nominee is a hack. Two recently confirmed judges — Robert Wier, for a U.S. District Court seat in Kentucky, and Amul R. Thapar, a former Kentucky District judge and U.S. attorney, for a seat on the 6th U.S. Circuit Court of Appeals — were supported by respected lawyers and judges of both parties.
But no matter how Trump's controversial presidency ends, America will be shaped for a generation by the judges McConnell's scheming enabled him to appoint.