During his administration, President Trump appointed many conservative judges–but on balance, he set back conservative legal values more than he advanced them.
This is a story about the conservative legal movement and reaping what you sow.
Two years ago, I was talking to fellow University of Virginia alumni about Congress’s fast pace of judicial confirmations during the Trump administration. We were all very happy about the latest slate of judges that had been confirmed by the Senate. Then things turned to President Trump and whether we’d support him in the next election.
“I oppose him. I’d never be able to vote for him,” I said.
“Because of what happened in Charlottesville,” I said, a little taken aback. This person had spent three years living and studying and Charlottesville, just like me. Surely he remembered? After the “Unite the Right” rally, where protestors terrorized the local community and murdered a woman, President Trump pivoted from denouncing the violence to attacking the news media and claiming there were “very fine people on both sides.”
And he said, “Oh, I forgot about that. But I’m glad we’ve gotten all these judges!”
And I’ll never forget that.
Because it’s not that people ignore events and policies that they think don’t impact them. It’s worse than that–it doesn’t even enter their frame of reference. It’s like it never happened. This selective forgetfulness has cropped up countless other times during the Trump administration and the implication is always the same: this outrage was worth it because we’re winning. We got the right people in the right place.
Such a perspective comes at a cost.
I believe in the conservative legal movement because it understands the proper role of the judicial system. It bolsters the democratic process by telling the public to hash out policy questions in the political, rather than judicial, realm.
I had assumed that other people who cared about it would understand why the Unite the Right riot was antithetical to the rule of law, why the things President Trump did and said undermined our legal philosophy. But he didn’t see that connection at all. What he saw were colleagues and mentors becoming judges and the ascendancy of a philosophy he agreed with. And that was all that mattered.
I was furious, and I’ve been furious ever since. I’ve been furious every day. But what could I say? He got his judges. We did.
If you are a conservative then the extraordinary bounty of federal judgeships over the last four years might be cause for celebration. President Trump appointed, and the Senate confirmed, over 230 judges during his single term in office. His 54 appellate appointments will tilt the thorniest legal decisions towards an originalist orientation for years.
Contrary to the view of the President—and also progressives—these appointees are not there to serve conservative political interests or do the bidding of Republican presidents. Instead, many of the President’s picks have demonstrated what conservatives have long known—we’re a complicated bunch. We have shared values but we have a diversity of views. And there are plenty of cases where we will work with the other side to expand liberty and defend the rule of law, sometimes in unexpected or controversial ways. For instance, Justice Gorsuch’s textualist approach led to expanded employment protections for the LGBTQ+ community, and recent appointees have shown a willingness to rein in the excesses of the criminal justice system on issues like gun rights and civil asset forfeiture. Most recently, conservative judges have rejected attempts to review state certifications of the 2020 election.
This is not, then, just another version of the progressive, results‐oriented judicial decision‐making that Professor Mark Tushnet advocated when it appeared Hillary Clinton would win the 2016 election. Professor Randy Barnett described the difference between these two legal approaches well shortly after Trump’s victory: Conservatives want judges that are bound by “the fundamental principles of limited federal powers [and] the separation of powers.” Supreme Court Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett embody this approach and have crushed any hope progressives had that they could take the Court and use it to achieve their policy objectives.
On the surface, the Trump administration was a boon for the conservative legal establishment for all these reasons. But scratch under the surface: look past the appointments and the legal victories and you can see the rot in the foundation. Consistently throughout his administration, President Trump undermined the universal values conservatives advocate, and it has set our movement back. At the same time the President worked to don black robes on a fleet of principled, conservative lawyers, he undermined the values conservatives have worked so hard to defend against a resurgent left and an emboldened populist base.
In his speech to the Federalist Society’s 2019 National Lawyers Convention in 2019, former Attorney General Barr exalted the value of judges who shared our views on the rule of law, judicial humility, and the noxious power of the administrative state in securing a free, democratic society. President Trump undermined each of these values constantly and that trend only accelerated as we hurtled towards the end of his administration: ordering the Georgia Secretary of State to find ballots that would swing the election in his favor and riling up a mob to attack the Capitol and overturn the election. Years before, the President repeatedly described judicial appointments as “his” judges rather than non‐political actors, further polarizing how the public views the judiciary.
I want the conservative legal movement to succeed. My career reflects that. But the way it succeeds is not merely by gaining power or putting the right people in place. We have to support politicians who reflect our values and demonstrate that the political process is not a never‐ending war of all against all without any guardrails. At a minimum, we have to support the democratic institutions that bind our country together and leaders who don’t undermine them. If you believe our society is too polarized for persuasion to work or that the left can only be defeated through accumulating judicial and political power, then there may be nothing I can say to dissuade you.
But I will try: Look where the conservative movement is now. We have lost the Senate, the House, and the Presidency. When gaining power and “owning the libs” is the only thing you care about, this is what happens: you lose. You lose because you shred your credibility, undermine the system that helped you secure your victories, and you convince observers that they’re suckers if they care about the rules. Conservatism is not about winning. Nor is it about the number of judges you appoint. It is about supporting our democratic institutions, the rule of law, and empowering people. If we focus on sowing those principles, the country and our movement will be much better off.