WASHINGTON — President Donald Trump is reshaping the federal judiciary in Texas with remarkable efficiency, positioning the Republican to leave a decades-long imprint on the Lone Star State no matter whether he secures re-election next year.
His conservative judicial push comes with significant assistance from Texas Sens. John Cornyn and Ted Cruz, fellow Republicans who are working to expedite the process in the GOP-run Senate.
Trump-appointed judges now make up a plurality on the 5th U.S. Circuit Court of Appeals, which covers Texas and two other states at a step below the Supreme Court. They could likewise soon make up a plurality in Texas at the district court level, which sits below the appeals court.
While the lower courts lack the power and profile of the Supreme Court, they still wield vast influence simply because they handle most of the work in the federal judiciary.
Those venues in Texas hold particular importance. That’s because the state often ends up having an outsize role in hot-button matters, requiring lower court judges — who receive lifetime appointments — to handle key cases on everything from immigration to health care to patent law.
“This is going to be the most enduring legacy of President Trump’s time in office,” Cornyn said in an interview, hailing the commander in chief’s attention to openings up and down the federal bench.
The shift in Texas mirrors a trend in federal courts across the U.S.
While it’s not unusual for a president to leave a mark on the federal judiciary, Trump’s machine-like proficiency in appointing what Cruz often calls “strong, constitutionalist judges” has amped up concerns from Democrats in the Lone Star State and beyond.
Texas Democrats accuse Cornyn and Cruz of slow-walking the effort to fill judicial vacancies under President Barack Obama, thus leaving Trump with more opportunities. They say the Republicans have left them in the dark about the latest nominations to the federal bench.
They question the qualifications of some Trump appointees, particularly after the White House had to withdraw one Texas nominee amid controversy.
“We’re aware of how distorted our judiciary has become,” said Rep. Eddie Bernice Johnson, a Dallas Democrat who said the lower courts are critical in determining “fairness and justice for all.” “It’s a major issue.”
Cornyn and Cruz defend their work in filling vacancies now and during the Obama era. But they make no apologies for pressing ahead with Trump’s court agenda, particularly after complaining for years about alleged judicial activism from judges appointed by more liberal presidents.
“The American people will be better served and the rule of law preserved, thanks in large part to the judges President Trump has nominated and the Republican-led Senate have confirmed,” Cruz said in a written statement.
Trump has already appointed two Supreme Court justices, Neil Gorsuch and Brett Kavanaugh, despite fierce Democratic pushback. That tally is equal to the number of Supreme Court justices Obama confirmed during the full eight years of his presidency.
The Republican has also appointed more than 35 judges to circuit courts — five on the 5th Circuit alone — putting him well ahead of the pace set by the five presidents who served before him.
Trump hasn't moved with quite the same speed at the district court level, so far trailing some of his recent White House predecessors. But he's turning his attention that direction, with Senate Majority Leader Mitch McConnell teeing up a rules change that would allow much quicker district court confirmations.
Consider that the president has 11 nominees lined up for just the four Texas district courts, where Trump appointees already claim five of the 52 positions.
“For an administration that doesn’t execute a lot of things very well, they’ve executed this amazingly well,” said David Coale, a Dallas attorney who keeps close tabs on Texas’ federal judiciary and, in particular, the 5th Circuit.
The Senate is the chamber solely responsible for confirming federal judges. And the alignment of a GOP president, a GOP Senate and a state with two GOP senators — both members of the Senate Judiciary Committee at that — has eased Trump’s efforts in Texas.
Further aiding Trump in Texas and beyond is the elimination of some Senate traditions, such as the 60-vote threshold for judicial confirmations that Democrats started axing in 2013.
The president also benefited from inheriting dozens of judicial vacancies — a Supreme Court seat, most notably — with some of those slots having sat unfilled for considerable periods of time. Texas’ district courts alone had 11 vacancies deemed “emergencies” by the end of Obama’s tenure.
It’s an issue that traces in part to 2015, when the GOP took control of the Senate.
The Senate proceeded to confirm far fewer judicial nominees in the last two years of the Obama administration than it did during the last two years of the administrations of George W. Bush, Bill Clinton and Ronald Reagan, according to a Brookings Institution analysis.
While Republicans like Cornyn say Obama didn’t make the judicial nominations enough of a priority, Democrats say the GOP senators made the task near impossible.
“It totally went off the rails,” said Johnson, the Dallas Democrat.
Texas Democrats also complain they are now shut out of the nomination process — unlike times in the past when they had at least some input — amplifying concerns about some of Trump’s choices.
The case that drew the most ire was Jeff Mateer, whose nomination to the Eastern District of Texas was withdrawn in December 2017 after it was revealed that he had described transgender children as evidence of "Satan's plan." But that wasn't the only instance.
"I have seen Trump-appointed federal judges that have a right-wing ideology that would not be acceptable and that I feel are harmful to our country and our system of democracy," said Lisa Blue, a Dallas attorney and major Democratic donor who's tracked judicial nominations.
Cornyn and Cruz rejected the broader criticism, stressing that they approached the task with the same vigor during the Obama years as they have during Trump's tenure.
Cruz called the judges confirmed under Trump “brilliant, immensely talented and professional.” Cornyn noted that two Trump picks in Texas had also been Obama nominees, and even Blue allowed that some Trump judges have been “acceptable to both parties.”
Both senators also pointed to their Federal Judicial Evaluation Committee, which they tout as a diverse, bipartisan group of top Texas attorneys that helps narrow the list of candidates.
“The committee does a lot of good hard work,” Cornyn said.
It does not appear that the senators have released a list of those on the committee since Cruz joined the Senate in 2013. Of the 35 attorneys on the panel then, about 75 percent have contributed only to Republican politicians, according to campaign finance records.
San Antonio attorney David Prichard, the group’s chairman then and now, said the task continues to be working “really, really hard to get outstanding recommendations up to our senators.”
While he said the committee’s nuts-and-bolts work remains largely the same as it was during the Obama era — stressing that the group is “just one stop along a multistop train ride to an appointment” — he also didn’t hesitate to state the obvious.
“It’s a little bit easier when you have a Republican administration and two Republican senators than when you have a Democratic administration and two Republican senators,” he said. “That’s just practical politics.”
The full impact of Trump’s judicial push in Texas may take some time to land.
The state has elected conservative senators for decades, meaning that the federal judiciary there has long been stocked with picks that reflect that sort of philosophy. So Trump, even at his current pace, cannot produce the kind of sea change in Texas that’s being seen elsewhere.
But Coale, the close observer of the 5th Circuit, said he’s already noticing changes.
Among the subtle shifts are the Trump appointees on the appellate court voting together to try to force it to hear more cases as a full group, rather than just as three-judge panels; and writing opinions that clearly reflect a vision for smaller government, he said.
That might not mean much to average Texans right now. But “there is nothing else in government that casts a shadow as long as judicial appointments,” he said.
"In 20 years, it will affect them a lot," said Coale, who runs a blog called "600 Camp," named after the address of the 5th Circuit. "The air they breathe, the water they drink, the taxes they pay — all of that will be affected in some way by somebody who's been appointed in the last couple of years or in the months to come."
