The importance of being ideologically earnest.

The US Senate recently confirmed President Donald Trump’s first judicial nominee of his second term, Whitney Hermandorfer, to the Sixth Circuit Court of Appeals. He will have fewer opportunities to appoint federal judges in his second term, though his selections may be more critical than at any time in the nation’s history.

Your subscription could not be saved. Please try again. Your subscription has been successful. The judiciary was intended by the Founding Fathers to be the least powerful of the three branches, tasked with holding the executive and legislative powers in check by ensuring each obeyed the dictates of the country’s laws in service to the US Constitution. Yet, as special interest groups and ideological divisions have increased, so too has the influence of an increasingly activist court. Conservative attorney Mark Levin has charged that “[j]udicial activists are nothing short of radicals in robes — contemptuous of the rule of law, subverting the Constitution at will, and using their public trust to impose their policy preferences on society.” Indeed, many in the social justice camp regard the Founding Fathers as a dominant white patriarchy in need of displacement by a more diverse phalanx of federal judges reflective of gender, race, and sexual orientation.

This ideological influence mirrors the evolving progressive perspective on the role of courts. The historical view was that they should merely interpret and apply, not promulgate and shape, American jurisprudence. As modern courts have increasingly diverged into the field of activist revision of constitutional tradition, public trust in the US Supreme Court has waned. The federal judges selected by Trump over the next several years will have a substantial impact on the pace of this transformation.

It seemed that, when nominated, Supreme Court Justice Ketanji Brown Jackson was noted for her gender and skin color more than her intellectual prowess. Yet the Constitution registers no consideration of these attributes as necessary to fairly and impartially adjudicate the nation’s laws. Deviating from longstanding precedent, Jackson has a strong ideological bent toward activism. Ironically, her intersectionality includes womanhood and a feminist inclination, but she famously could not define what a woman is.

Several aspects of the modern American judicial system have steadily veered away from its traditional role of simply enforcing laws passed by Congress or issued by the executive in favor of insinuating deeply held political views into a system designed to be apolitical. It is no wonder that public confidence in the courts has declined. Rarely have SCOTUS decisions been as politically predictable as on the current Court, where the left-leaning allegiances of Justices Jackson, Sonia Sotomayor, and Elena Kagan routinely place them in a dissenting face-off against the other six justices.

Judicial Nominations by Trump Are Key

This composition displays the importance of the judicial nominations made by President Trump. Federal judges are appointed for life, generally selected for their political leanings or loyalties rather than for their academic excellence or intellectual integrity. This is evident in the current Court. Kagan and Sotomayor were nominated by Barack Obama, and Brown Jackson by Biden. Trump nominated Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh. The Bushes appointed Samuel Alito, Clarence Thomas, and John Roberts. The 6-3 split so often witnessed in recent rulings tends to align along partisan allegiances.

The battle between liberal and conservative judicial nominees is not a novel phenomenon, of course, but it has intensified steadily in tandem with the rise of progressive ideology, identity politics, and increased secularization within American society. Promising to nominate a justice based on skin color and gender rather than merit and experience was a hallmark of Joe Biden’s presidential campaign – and he delivered. Brown Jackson has displaced traditional judicial philosophy more forcefully than perhaps any justice ever.

The next few years are crucial for the Trump administration to install judges who will adhere to the historically centered view of the judiciary’s role, defined aptly by the late Republican Sen. Orrin Hatch: “Judges are supposed to settle real legal disputes by impartially interpreting and applying the law. They are to take the law as it is, as the people and their elected representatives choose to fashion it.” Or, as stated by the liberal former Supreme Court Justice Stephen Breyer, “Independence means you decide according to the law and the facts.”

As so many of today’s federal district judges rely on nationwide injunctions to single-handedly halt presidential executive orders, it is easy to see the governmental imbalance that results when this principle is abandoned. Judicial battles center less on conservative versus liberal interpretations of agreed-upon laws and more on independent interpretation versus creative re-crafting.

Presidents are generally more directly involved in the selection of Supreme Court justices than in the appointment of federal district court judges. Still, circuit judges, like Hermandorfer, are arguably more influential than SCOTUS nominees because federal appellate courts hear thousands of cases a year. In contrast, the Supreme Court oversees fewer than 200. A stellar academic who clerked for Kavanaugh before his rise to the SCOTUS bench, Hermandorfer replaces Obama appointee Jane Branstetter Stranch in the Sixth Circuit.

President Trump oversaw the Senate confirmation of 234 judges in his first term; there are currently only 49 vacancies to fill. Judicial nominees are of immense importance in shaping the direction of future courts. They can also help instill public trust in the justice system, provided they interpret and safeguard the laws in accordance with the Constitution rather than aiming to meet ideological visions. As politicization runs rampant across American institutions, whether they will live up to that promise will likely be in the eye of the beholder.

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