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President Donald Trump’s judicial appointees are more conservative, on average, than those nominated by former Republican presidents, according to a new study commissioned by the liberal activist group Demand Justice.
The study, which was conducted by progressive think tank Data for Progress, found that Trump judicial appointees were, on average, 20 percent more conservative than George W. Bush’s.
“This analysis reveals how dangerously far to the right Trump has moved the federal courts in almost no time at all,” said Brian Fallon, the executive director of Demand Justice, in a statement. “Democrats in the Senate have been too slow to recognize the crisis that is underway, and continue to support many of these nominees as if they are within the mainstream ideologically. These are not normal nominees, and Democrats can’t continue to treat this situation as business as usual.”
It’s not just ideology: The analysis also found that Trump’s nominees, as a group, have been far whiter and are more likely to be male than those appointed by former President Barack Obama.
Ninety-three percent of Trump’s appointees have been white, compared to 65 percent of Obama’s. And 75 percent of Trump’s appointees have been men, compared to 59 percent of Obama’s. Trump’s appointees are also more likely to be politically active, in that a larger proportion have made donations to major-party candidates, compared to Obama and George W. Bush’s, the study adds.
How Demand Justice scored the judges
Data for Progress relied on a scoring system established by political scientists Maya Sen of Harvard and Adam Bonica of Stanford, who calculated ideology scores for attorneys and judges using an expansive donations database. The study leveraged the scores Sen and Bonica have given hundreds of judges to compare appointees across different presidential administrations.
Using Sen and Bonica’s system, judicial appointees are scored based on political donations they have made in the past. As the thinking behind these scores goes, if appointees have donated to liberal candidates, then they are more likely to be liberal themselves.
For appointees who had not donated to any political candidates, Data for Progress used information that’s been found to be correlated with these scores, such as employment history as well as the party of the appointing president, to determine a proxy.
The dots on the chart, below, show where the median judicial appointee of each administration falls. The vertical lines represent the median score of each party’s respective judicial appointees over time.
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Adam Chilton, a University of Chicago law professor who previously worked with Sen and Bonica on a paper analyzing law professors’ ideological leanings, told Vox that these scores are an effective proxy for ideology and that their application made sense in this study.
Chilton noted that donations are helpful indicators of different judges’ partisan leanings because they reflect actions they’ve actually taken, which are useful for inferring their positions. “The reason is that it is based on the revealed preferences of the judges themselves (that is, who they choose to donate too),” he said.
Some academics cautioned, however, that the analysis may simply reflect heightened polarization in the political climate overall — something the study also points out — and noted that there are limitations to what these scores could capture.
“I’d note that the Trump appointees are not that much more likely to donate to Republican candidates than the Obama or George W. Bush nominees were, respectively,” said Benjamin Barton of the University of Tennessee. “I like that they note that some of this may just be polarization. Trump was slightly more partisan than Obama, who was more partisan than George W. Bush, etc.”
University of Virginia’s Joshua Fischman warned that these scores could also fail to capture important nuances. “The CF scores are good measures of judicial ideology, but they aren’t perfect,” he said. “They clearly show that Trump has appointed conservative judges, but I’m not sure if the differences between Trump and Bush appointees are meaningful.”
As both Fischman and the study noted, however, one thing is for sure: Trump’s judicial appointees are definitively conservative, and with Republicans’ majority in the Senate, this trend is only expected to continue.
Making the judicial branch more conservative has been a priority for Republicans
Demand Justice argues that this analysis underscores how extreme the judicial picks of the White House and Senate Majority Leader Mitch McConnell have been. Jamming through judges has been a key priority of McConnell’s as he’s worked to keep the Republican conference united in the past two years. Trump, too, has prioritized the issue.
As of fall 2018, Trump had seen more circuit court nominees confirmed than several of his predecessors, though he lagged in district court nominees. (The circuit courts are the second most powerful federal courts in the US after the Supreme Court, while the district courts are just beneath them.)
Barton, of the University of Tennessee, says the results match up closely with how Trump has talked about his efforts on judicial nominees, many of whom have the backing of the Federalist Society, a group that seeks to appoint conservative judges.
“As in many other areas, Trump has made the subtext of judicial selections text,” Barton said. “He promised repeatedly on the trail to appoint only very conservative judges, and if anything, these results are a little tamer than I would have guessed.”
