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Scalias All the Way Down

The Wall Street Journal, October 12, 2017

By: Kimberley Strassel

Ask most Republicans to identify Donald Trump’s biggest triumph to date, and the answer comes quick: Supreme Court Justice Neil Gorsuch. That’s the cramped view.

The media remains so caught up with the president’s tweets that it has missed Mr. Trump’s project to transform the rest of the federal judiciary. The president is stocking the courts with a class of brilliant young textualists bearing little relation to even their Reagan or Bush predecessors. Mr. Trump’s nastygrams to Bob Corker will be a distant memory next week. Notre Dame law professor Amy Coney Barrett’s influence on the Seventh U.S. Circuit Court of Appeals could still be going strong 40 years from now.

Mr. Trump has now nominated nearly 60 judges, filling more vacancies than Barack Obama did in his entire first year. There are another 160 court openings, allowing Mr. Trump to flip or further consolidate conservative majorities on the circuit courts that have the final say on 99% of federal legal disputes.

This project is the work of Mr. Trump, White House Counsel Don McGahn and Senate Majority Leader Mitch McConnell. Every new president cares about the judiciary, but no administration in memory has approached appointments with more purpose than this team.

Mr. Trump makes the decisions, though he’s taking cues from Mr. McGahn and his team. The Bushies preferred a committee approach: Dozens of advisers hunted for the least controversial nominee with the smallest paper trail. That helped get picks past a Senate filibuster, but it led to bland choices, or to ideological surprises like retired Justice David Souter.

Harry Reid’s 2013 decision to blow up the filibuster for judicial nominees has freed the Trump White House from having to worry about a Democratic veto during confirmation. Mr. McGahn’s team (loaded with former Clarence Thomas clerks) has carte blanche to work with outside groups like the Federalist Society to tap the most conservative judges.

Mr. McGahn has long been obsessed with constitutional law and the risks of an all-powerful administrative state. His crew isn’t subjecting candidates to 1980s-style litmus tests on issues like abortion. Instead the focus is on promoting jurists who understand the unique challenges of our big-government times. Can the prospective nominee read a statute? Does he or she defer to the government’s view of its own authority? The result has been a band of young rock stars and Scalia-style textualists like Ms. Barrett, Texas Supreme Court Justice Don Willett and Minnesota Supreme Court Associate Justice David Stras.

Senate Republicans have so far blown their major agenda items, but they’ve remained unified on judges. They agreed to kill the Senate filibuster for Supreme Court nominees so as to confirm Justice Gorsuch; have confirmed six other judicial nominees; and stand ready to greenlight dozens more. This is a big shift from divisions the party had over the Bush 41 and Bush 43 nominees.

Because Mr. Trump’s picks have largely spent their careers focused on administrative law and constitutional questions, few have gotten bogged down by controversial cultural rulings. They do have paper trails, but mostly on serious and technical issues. This helps reassure Republicans even as it deprives Democrats of the fodder they’d need to stage dramatic opposition.

Conservatives praised Mr. McConnell last year for refusing to consider Judge Merrick Garland, whom Mr. Obama had nominated to the Supreme Court. Less well known is the sheer number of federal judgeships Mr. McConnell sat on as the Obama administration wound down. Mr. Trump took office with 107 lower-court vacancies, more than any of the past five presidents save Bill Clinton. The GOP challenge now is to break Democratic obstruction and get those posts filled.

Former Trump aide Steve Bannon is vowing to primary at least six GOP senators next year, saying he will support only candidates who refuse to back Mr. McConnell for another stint as leader. But Mr. Bannon’s claim that Mr. McConnell represents the “swamp” is lazy scapegoating. Yes, health-care reform failed—thanks to three showboating Republican senators. And yes, the House gets more done. But only the Senate is in the long-term personnel business.

The Trump judicial reset was never guaranteed. Mr. McConnell just happens to have a steely passion for remaking the judiciary. Previous majority leaders Trent Lott (best friends with trial lawyers) and Bill Frist (nice, nice) would never have gotten Justice Gorsuch confirmed. Those guys were the “establishment.”

Ted Cruz, Mike Lee, Jodi Ernst, Deb Fischer, Dan Sullivan, Cory Gardner, Marco Rubio, Tom Cotton —this is the new generation of Republican senators. They were all elected in recent cycles. They are reformers, far removed from the earmarking, logrolling, crony, backroom days of washed-out Republicans who inspired the tea party.

The country has moved, as has Congress. The proof is in the extraordinary class of judicial nominees now coming through. Mr. Trump will keep baiting the media with shiny objects. In the background, government is being redone.