Donald J. Trump appointed 234 federal judges in his first term. Trump, as is his wont, claims, with an inflated number, that he appointed a record number of judges. As the election closes in, Democrats in Congress are rushing to confirm as many judges as possible. Why? To match or beat Trump’s 234.
Federal judges, with lifetime appointments, are around for a lot longer than presidents. Trump’s judges, who are the youngest cohort of judges appointed by any president, will be making law for decades. If the Democrats worry that the Trump judges have problematic views on key issues—guns, religion, abortion—then they will want to appoint a set of judges who are likely to counter their effect.
But focusing only on the raw number of judges misses a crucial fact about how they shape the law. When it comes to exerting influence on the bench, some judges are likely to be more equal than others. And Trump’s judges have been the most influential of all.
At first cut, one might think that Trump judges wouldn’t be influential. Unlike other recent presidents, Trump was open about how “his” judges could be depended upon to rule in particular ways on issues like abortion and gun control. Other judges, appointed in less partisan times, would be unlikely, we thought, to trust the legal reasoning of such a group of judges, so the Trump judges would not be particularly influential. That turns out to be false. And that should be food for thought for the Democrats rushing to beat 234.
The table below compares the influence ratings of 43 Trump judges and 34 judges appointed by other presidents. These judges were active on federal courts of appeals from Jan. 1, 2020, to June 30, 2023. We limited the comparison to judges under the age of 55 in 2020 to capture the relative performance of those who could be in contention for nomination to the Supreme Court (beyond age 60, one’s chances of promotion are small). A caveat here is that the Joe Biden judges are at a disadvantage in the comparison because it may take some years to build a reputation; conversely, judges appointed by George W. Bush and Barack Obama might have an advantage.
We measure the judges’ influence through citations by their peers. If other judges borrow the reasoning of an opinion written by one of the judges in our pool, we take it as an indication of influence. To avoid our measure being biased by those citations by lower court judges who are bound by precedent, we only look at citations by judges outside the circuit court of the judge in question.
The table below reports, from our pool of 77 judges, the top 10 influencers. Of the top 10, nine are Trump appointees. And two of them (Judge James Ho and Judge Kyle Duncan) are names frequently found on short lists for the Supreme Court. While these judges are often criticized for being partisan, their opinions are still influential.
One might ask whether the citations to the Trump judges are mostly coming from other Republican (or Trump) judges. In a ranking showing citations only by non-Republican-appointed judges, Trump judges still took the top influencer spots. (For more, see here.)
At the top, Judge Eric Murphy and Judge Amy St. Eve have 499 and 451 outside citations, or a total of 950 outside-circuit citations. In comparison, the bottom 38 judges of our pool, or roughly half of the pool, have a total of 988 outside-circuit citations combined. The two judges at the top have roughly an equivalent number of outside-circuit citations as the bottom 38 judges.
Table: Total Outside-Circuit Case Citations
The raw number of judges is but a small part of the equation if Democrats care about long-term influence. The way influence markets work, those at the top have many times the impact of others who might, in skill and qualifications, be only slightly below them. Think of Taylor Swift’s music or J.K. Rowling’s “Harry Potter”—they far outstrip their peers in sales. The number of judges matters. But if Democrats want to have long-term impact on the law, it’s important that they appoint superstars whom others will follow.
So why are conservatives winning the influence game? Our sense is that Republicans have long been better at playing it than Democrats. Richard Posner and Frank Easterbrook, two judges appointed by Ronald Reagan, have influence numbers that dwarf those of Murphy and St. Eve. They were picked in large part for their commitment to an economics-oriented worldview. Both were also prolific academics who wrote with unusual clarity—not always an academic trait. If the Democrats want long-term influence, and influence levels that compete with those of Trump-appointed judges, they may need to take a page out of Reagan’s playbook. They should select judges who have a clear judicial philosophy and are willing to advance the law in liberal or progressive directions.
So far, the Biden administration’s focus has reportedly been on diversifying the bench. And there is no question that Democrats have been successful in that regard. President Biden has appointed more women and more nonwhite federal judges than any president before him. This administration has also diversified the bench by nominating record numbers of public defenders. In addition to making these important strides, Democrats must also consider the long-term impact of their judicial appointments, at least if they want to counter the effect of Trump-appointed justices. Perhaps some of the judges they have recently appointed will emerge over the next several years as influencers—that is possible. But if the history of appointments is any indication, selecting for influence must also become a meaningful consideration in future judicial nominations.
It’s time to appoint judges who could become superstar influencers.
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