Trump is about to nominate many more judges, with big climate implications
The president-elect had already nominated more judges than nearly any other one-term president.
Donald Trump’s reelection has set the Republican up to continue shaping the makeup of American courts, cementing his influence on the nation’s system of checks and balances overseeing environmental law for decades to come.
Plenty of speculation has already focused on his potential continued impact on the most visible segment of the American legal system: the Supreme Court, over which Trump has already exerted extraordinary influence through the nomination of three justices who have curtailed clean water and air protections.
But the president-elect will also be positioned to nominate dozens more federal judges in lower courts as well, further extending the conservative legal movement’s influence into the kinds of cases — think energy exploration on federal lands, gas exports or air pollution cases — that don’t wind their way up to SCOTUS but nevertheless have massive impacts on Americans’ daily lives.
“We should expect many more Trump judges that are even more conservative than the Federalist nominees from last time,” Patrick Parenteau, a professor emeritus at Vermont Law School and former Environmental Protection Agency attorney, told Landmark, referring to the conservative Federalist Society group that has become a sort of judicial pipeline for the Republican Party.
Already one of the biggest impressions on U.S. courts of any president
During his first four years in office, Trump appointed federal judges to lifetime positions at a rate that far exceeded what most presidents accomplish.
In fact, assuming Joe Biden doesn’t match or exceed his record, Trump’s 234 nominations were the second-most nominations of any president in a single term.
That record included the three Supreme Court justices and 54 of the 179 U.S. appeals court judges. Notably, however, just three of the judges on the D.C. Circuit, which has exclusive jurisdiction over many administrative environmental law cases impacting the entire country, were nominated by Trump.
Trump ally Mike Davis, the founder of the conservative judicial advocacy group Article III Project, told Landmark that the president-elect’s second term “should be no different.”
“He now has a mandate to govern and to continue his legacy of selecting the judges and justices he wants,” Davis, who is reportedly advising the Trump team on judicial nominations, said.
Davis has posted on social media that anyone who wants one of those jobs needs "concrete evidence of your loyalty to Trump."
Fewer vacancies
Regardless of any mandate, Trump will be inheriting a much smaller number of vacancies than his first term. Biden has already had 213 judges confirmed to the federal bench, and has nominated 28 more judges that could fill the 47 existing vacancies out there.
And there are no vacancies on the Supreme Court, though there has been some speculation that conservative Justices Samuel Alito or Clarence Thomas may be pressured to retire now that there is a Republican president in the White House with a Republican Senate available to confirm his nominees.
(Notably, not everyone is convinced either Alito or Thomas would step down from one of the most powerful jobs in the country. Thomas said in the 1990s that he planned on staying in the gig until the 30s.)
David Prichard, a Texas attorney who sits on a committee that advises the state’s two senators on potential judicial nominees and U.S. attorney picks, said that the first Trump administration was very interested in quickly filling all available seats. He expects that to continue for any open seats.
“I think we’re going to see pretty prompt work on that, and we’ve got a number we’re going to have to fill. We have four or five vacancies in Texas on the federal trial bench,” he told Landmark.
Bracing for the environmental fight
In the week since Trump’s reelection, environmental groups and Democratic state attorneys general have made it clear that the courts are a key forum for their planned resistance to a second Trump administration.
The top lawyers or governors for California, Washington, Illinois, New York and Massachusetts are among those making plans. During the first Trump administration, they fought changes to environmental review processes, and fought rollbacks on regulations to limit methane emissions or coal pollution, among other things.
As a result of those challenges, and others by environmental groups, Trump’s first four years saw more losses in court than virtually any other presidential administration in recent history.
But several experts said that, while Trump and Biden have both nominated a high number of federal judges, Trump’s picks for lower courts may be much more likely to toe the party line when issuing decisions, so to speak.
That may become very important as legal challenges to Trump agency actions shift to places like D.C., Massachusetts or California, where judges are thought to be a bit more liberal. While many legal challenges to Biden rules landed in places like Texas where conservative judges oversaw the cases and often sided with conservative or business interests, experts said Democratic challengers should expect one jurisdiction to be a “home run” ideologically.
And William Buzbee, a professor at Georgetown Law, told Landmark in an interview before the election that any further nominations by Trump to the Supreme Court could have an outsized impact on the future of similar challenges.
“The Supreme Court has gotten far more active in reaching down and grabbing cases at earlier stages,” he said, adding that he and others see the court as “highly political” and one that is “very much against regulation.”
Gregg Nunziata, a conservative lawyer and the executive director at the Society for the Rule of the Law, said that it would be a mistake for either side of the aisle to even want partisan judges in the courts.
“I think judges that are truly activists, whether they’re left or right, are a challenge to American self-government and to democracy in a very deep way,” Nunziata said. “Judges have a lifetime mandate to guarantee their independence, but it’s on the understanding that they’re going to mutually uphold the law.”
“If they’re pursuing a particular outcome … that’s concerning,” he said. “Even if you like the outcome, you should be concerned about it being achieved by a judge who is unelected and unremovable.”