As the Senate confirms nearly 40 circuit court nominees and counting, the third circuit has already moved rightward – which can change the US for decades

Mike Pence’s eyes twinkled with the applause line he was about to deliver. Speaking in Washington on Wednesday at an annual conference of the Federalist Society, the conservative legal group, the vice-president had great news to share.

Earlier that day, the Senate had confirmed yet another circuit court judge nominated by Donald Trump, bringing his grand total to 38, neatly doubling the 19 judges at that level that Barack Obama saw confirmed by the same stage of his presidency.

Trump's legacy: conservative judges who will dominate US law for decades Read more

But Pence had an even juicier number to boast of: the week before, thanks to a flurry of activity in the Senate engineered by the majority leader, Mitch McConnell, the number of confirmed Trump appointees to federal judgeships had hit triple digits.

“This president has actually appointed more than 100 men and women to our federal courts, including more circuit court judges than any president in American history,” said Pence, slowing his pace to deliver the kicker: “And they are all conservatives who are committed to the principles enshrined in the constitution of the United States!”

Pence was drowned in applause before he could finish the sentence. But watchdog groups warn that by “conservative”, Pence was referring to more than just a particular flavor of jurisprudence.

He meant judges eager to see through fundamental changes in American life, from the criminalization of abortion to the gutting of LGBTQ rights and environmental protections, the reversal of healthcare reform, the sidelining of workers and the endorsement of religious discrimination.

“These nominees have records of working tirelessly to undermine access to healthcare, access to reproductive rights for women, who want to undermine critical protections for workers, for clean air and clean water that consumers rely on,” said Daniel Goldberg, the legal director at the Alliance For Justice.

“The people who are going to suffer are the millions of people around the country who rely on these critical, essential legal rights and protections that for the next three or four decades are going to be seriously eroded.”

The process of nominating and confirming federal judges can seem banal. For each time a particularly controversial nominee draws protesters to the Capitol and sets off a national debate, as supreme court justice Brett Kavanaugh did, dozens of lesser nominees pass through unremarked.

Facebook Twitter Pinterest A demonstrator sits on the lap of the Contemplation of Justice of statue as protesters rally against Brett Kavanaugh’s appointment in Washington DC on 6 October 2018. Photograph: José Luis Magaña/AFP/Getty Images

But even for lower-level nominees, the stakes are high. While the supreme court typically rules in fewer than 100 cases each year, appellate courts decide about 50,000, making them the last stop for justice in almost every case.

It is these appellate judges in particular that Trump has excelled at installing – though he also appointed two supreme court justices out of nine. There are 179 active appellate judges total. After replacing number 38 on Wednesday, Trump saw 39 confirmed on Thursday – with yet another confirmation to come next week.

While the majority of Trump’s nominees have replaced judges tapped by earlier Republican presidents – vacancies are created when a judge retires or semi-retires – it remains the fact that 22% of active circuit court judgeships will have been named by Trump, and counting.

Trump’s nominees are also notably young, meaning their lifetime appointments could be good for another 40 years or, in some cases, more. Trump might lose re-election in 2020, but in a sense, a 10-year-old who watches that happen will still be living in an America defined by Trump when they are 40.

“Perhaps the most successful area for the Trump administration has been the nomination of judges,” said Josh Blackman, a conservative legal scholar and professor at the South Texas College of Law. “With only a few exceptions, a handful, all of Trump’s judges have made it through.”

Blackman said that progressive fears about Trump’s judges were inverted on the conservative side with a sense of happy achievement. “If you don’t agree with these people’s philosophy, you think that they’re dangerous,” he said. “And if you do agree with their philosophy, you think that they’ll be good judges. So I’m not worried, I’m very pleased.”

Every president appoints judges, but there are signs that Trump’s appointments, by their sheer number, are moving the courts rightward. One simple gauge is the partisan balance on the 12 regional circuit courts, which have between six and 29 active judges each, based on the populations of their respective territories.

Trump has already “flipped” one circuit, the third, from a majority appointed by Democratic presidents to a majority appointed by Republicans. He is nearing potential flips in the second, fourth and 11th – which is the court that would hear appeals, for example, in any legal challenge to a bill Alabama legislators could pass next week making performing an abortion a felony punishable with up to 99 years in prison.

They are appointing movement lawyers to achieve specific policy objectives through the court system. Daniel L Goldberg

Analysts caution that more than 90% of appeals court rulings are unanimous, joined by judges “from” both parties, and in the past the partisan affiliation of the president who appointed a judge has not been predictive of the judge’s rulings.

Matthew Stiegler, a Philadelphia lawyer who blogs about developments in the third circuit, said that while the court might have drifted rightward under Trump, the “flip” itself was not momentous.

“That fact in isolation doesn’t have a whole lot of significance,” Stiegler said. “One big reason is that circuit courts hear cases with three-judge panels. It’s not the entire court sitting at the same time. So whether a majority of judges are appointed by one party or the other, that’s not going to be controlling in any particular case. And the cases that circuit courts are hearing are much less often decided along ideological lines.”

But with enough new judges, the math begins to change, and Trump has established “a record-setting pace” at the appellate level, said Carl Tobias, a professor at Richmond School of Law specializing in federal judicial selection.

And recently Trump accelerated further, following a Senate rules change McConnell put into effect last month that lowered mandatory debate time on any one district court nominee from 30 hours to two hours.

“Last week was a great example,” said Tobias. “They were able to push through five district nominees last week and I expect that pace will continue.”

Goldberg, whose group recently published a report titled Trump’s Attacks on Our Justice System, said Republicans were trying to use the courts “to accomplish what they can’t accomplish through the legislative process”.

“They could not repeal the Affordable Care Act (ACA),” Goldberg said. “So what are they trying to do now? Put on judges who have made clear that if confirmed, they will use the courts to take away critical access to healthcare for millions. We’ve already seen a judge in Texas declare the ACA unconstitutional.

“They are not nominating fair, unbiased judges based on their legal ability. They are appointing movement lawyers to achieve specific policy objectives through the court system.”

As Blackman pointed out, not everyone is worried. That included Pence on Wednesday at the Federalist Society event.

“It really is an honor,” the vice-president said, “to join so many of you who are part of this remarkable organization, with an extraordinary history, that’s impacting the life of the law and the life of our nation each and every day.”