Trump Has Made His First Round of Judicial Picks—and They’re Terrifying

Donald Trump unleashed his first round of judicial nominees over the past week: four district court appointments and one appellate judge. Trump made 234 judicial appointments during his first term. He’ll now have the opportunity to make hundreds more, and we can be sure that the worst is yet to come.

The district court appointments are all from Missouri, and they’ll serve as trial judges there. They’re all reliable Republicans, all litigators, and two of them have been working for the Republican Missouri attorney general. I’m sure they’ll do horrible things to the rights of anybody who winds up in their courtrooms who isn’t white, male, and straight. The fact that they’re practicing litigators, instead of law professors created in a Federalist Society lab experiment, is at least notable. Whether Trump continues down this track or falls back on standard-issue Leonard Leo acolytes is an issue that bears watching.

The nominee who should really give pause to liberals—along with anyone who wishes the Democratic Party would fight harder for control of the courts—is Trump’s pick for the Sixth Circuit Court of Appeals: Whitney Hermandorfer. If confirmed, she’ll replace Jane Branstetter Stranch, an Obama appointee who took senior status last year, pending confirmation of her successor.

Joe Biden did indeed do that. He tapped Karla Campbell, one of Stranch’s former clerks. But the Senate, controlled then by Democrats, refused to confirm her. I have no idea why. Campbell, a white woman who worked for the Peace Corps and the Department of Interior in addition to her legal work, was as inoffensive a pick for a circuit judge as you could reasonably get. Republicans were playing hardball with all of Biden’s judicial nominees by the end, but there was no objective reason for the Democratically controlled Senate to capitulate to the minority party.

But capitulate they did. Campbell’s nomination was scuttled as part of a gross “deal” engineered by Senate majority leader Charles Schumer in the lame-duck session after the election. Republicans agreed to drop their objections to a number of district court appointments while Democrats agreed to withdraw the four circuit court judges awaiting Senate confirmation. The deal allowed Joe Biden to say that he appointed 235 judges to the federal bench during his term, one more than Trump. To be clear, I would have taken four circuit judges over 12 trial judges any day, and that’s even while accepting the false premise that the majority party couldn’t have confirmed all 16 of the judges their Democratic president nominated. But my “deal” wouldn’t have given Biden the bigger number of total appointments. I can only assume that some Democrats think 235 appointments was a “victory” since some Democrats think this is all a freaking game and don’t know where power actually lies in the federal judicial system.

Now, Hermandorfer is on the brink of filling the vacancy created by Republican obstruction and Democrat ineptitude. She should be easily confirmed by the Republican Senate. A Princeton grad who went on to law school at George Washington University, she’s a Federalist Society member who clerked for alleged attempted rapist Brett Kavanaugh (when he was on the DC Circuit) as well as Supreme Court Justices Samuel Alito and Amy Coney Barrett. It would be churlish for me to suggest that she’s anything but “well qualified.”

But she will be an awful jurist by the standards of anyone who favors human rights. In recent years, she’s been working in the office of the Tennessee Attorney General, Jonathan Skrmetti. If that name sounds familiar to you, it should. Skrmetti is the named litigant in US v. Skrmetti, a case currently before the Supreme Court that revolves around Tennessee’s ban on gender-affirming care for minors. Skrmetti and the other bigots in the state are almost surely going to win that case when the decision comes down in a few weeks—and Hermandorfer will deserve much of the credit. As the “tip of the spear” (National Review’s words) for the Tennessee AG’s Strategic Litigation Unit, she has her hands all over the kinds of cases that make for big headlines across the culture-war universe—including US v. Skrmetti. She has also been in charge of defending Tennessee’s near-total ban on abortions.

All of this has at least some Republicans salivating. “This a great pick and hopefully just the first of many comparable choices to come,” gushed Michael Fragoso—former chief counsel to Mitch McConnell—in National Review. Fragoso also thinks this “puts to rest” any idea of a rift between Trump and the Fed Soc crew. Again, I’m not so sure about that and will wait for more evidence.

Hermandorfer has a long career ahead of her. She is now 37. To put that in perspective, when Obama elevated Jane Branstetter Stranch to the bench in 2010, she was already 57. I can hardly blame Stranch for taking senior status at the age of 72, but it highlights another failure of the Democrats’ approach to the courts: Historically speaking, Democrats nominate established professionals to the bench and then have to fight again for the seat every decade or so, Republicans nominate young people who can serve for almost half a century.

A person searching for “good” news might point out that at least Hermandorfer’s appointment will not meaningfully shift the balance of power on the Sixth Circuit. The 16-member court is already controlled by Republicans, 9–7. Replacing one Democratic justice for a Republican one just deepens Republican control, 10–6. But I’d argue that it’s worse than it seems. The two oldest judges on the circuit are both Clinton appointees in their late 70s. They’ll have to hang on for at least another four years. The circuit also has three George W. Bush appointees who are getting up in years and will soon be eligible for senior status. It’s not out of the realm of possibility that Trump could nominate five judges, in addition to Hermandorfer, to the Sixth Circuit before his term is up.

The Sixth Circuit oversees Kentucky, Michigan, Ohio, and Tennessee, by the way. We’re potentially looking at a court comprised, 12–4, of young, entrenched Republicans who control election laws in Michigan and Ohio.

One day, Democrats will get it. It’ll be too late, and they’ll be passing notes to each other through the bars in their cell blocks about what it was like to live in a democracy, but eventually Democrats will realize that their refusal to fight for the courts is why they failed.