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Trump Administration Leaves Its Mark On The Federal Judiciary


President Trump held a celebratory event at the White House yesterday. He was celebrating his success in reshaping the federal courts. Two of his nominees are on the U.S. Supreme Court, of course. But even more striking, roughly a quarter of all judges on U.S. appeals courts today are Trump's choices. Georgetown constitutional law professor Randy Barnett is with us in our studios in Washington this morning. Professor, good morning.

RANDY BARNETT: Good morning to you.

GREENE: So we should say, you're not just a casual observer or analyst here. I mean, you like what Trump is doing. You went to the White House for this event yesterday. What are you celebrating?

BARNETT: We're celebrating a restoration of balance to the federal judiciary. If Trump succeeds in nominating 25% of the federal bench, that means 75% were nominated by other presidents. And we are now reaching parity between nominees of both parties in most of the circuits after eight years of appointments that actually skewed Democrat.

GREENE: Well, there are some, of course, who aren't enjoying watching this. Democratic Senator Dianne Feinstein said that the president, in fact, is packing the judiciary with young judges who are far outside the mainstream - so different views.

But I just want to get to why it matters. I mean, most people aren't going to find themselves in front of a higher court in a case. So how will this trend play out in their everyday lives?

BARNETT: Well, it depends on issue by issue. The Constitution, if faithfully interpreted, will cut in a left direction and cut in a right direction. I was the lawyer representing Angel Raich in the medical marijuana case in front of the Supreme Court. Had we won our case, not only would it be legal to use medical marijuana in California, but it would not have been against federal law either. The federal law would've been unconstitutional as applied in that case.

So had we won our case, it would've - the Constitution would have skewed to the left. Unfortunately, we didn't get any of the progressive justices to vote for us. And we only had three conservative justices vote for us - Rehnquist, Thomas and O'Connor. We lost Scalia and Kennedy. But again, federalism is not just for conservatives and neither is the original meaning of the Constitution.

GREENE: I want to drill down on something you said, I mean, that - you argue that during eight years, the judiciary was skewing left. I mean, you say this is bringing it back into balance. You have that. You also have every candidate, it seems, who's willing to run for office based on this issue. I mean, can Americans really still see the judiciary as nonpartisan?

BARNETT: Well, first of all, I think it was a tremendous innovation for the president to run on a list of specific persons he committed himself to nominate for the Supreme Court. That was a - that's never been done before. And I would love to see whoever the Democratic nominee's list would - whatever the Democratic nominee's list would be, I'd like to see them in the primary, frankly, so we can judge their nominees like his nominees were judged.

I don't think that the fact that judges are selected by a partisan president and a partisan Senate means the judges themselves will be partisan in office. There's a big difference between those things. Our system contemplates that judges will be nominated by a politically-elected president and Senate. But that doesn't - but what each party represents are different judicial philosophies, not pro-Democrat or pro-Republican. They try to be as principled as possible.

GREENE: Randy Barnett teaches constitutional law at the Georgetown Law Center. He's also the author of "An Introduction To Constitutional Law: 100 Supreme Court Cases Everyone Should Know." Professor, thanks a lot.

BARNETT: Great to be here. Transcript provided by NPR, Copyright NPR.

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