top of page
  • International Bar Association

President Trump’s Lasting Legacy

The following interview with CFJ president Curt Levey was published by the International Bar Association:

...Others, such as Curt Levey, President of the Committee for Justice, reply that ‘the situation was unprecedented because there had not been a nomination in a presidential election year with the opposition controlling the Senate since 1888, and then it wasn’t tipping the Court. A good case could be made for letting the American people decide.’

Some social scientists, such as Harvard University’s Steven Levitsky and Daniel Ziblatt (authors of How Democracies Die), see Scalia’s succession as the epitome of one party pushing what’s constitutionally permissible to the limit, while defying the traditions of compromise that make democracy sustainable.

Levey offers a more sweeping historical frame. ‘Progressives have viewed the Court as a political tool since the Warren Court in the 1950s,’ he says. ‘After watching the Court implement a progressive agenda for 30 years, conservatives realised there was a need to push back.’ In the 1980s, under the influence of the newly formed Federalist Society, Republicans began to promote strict constructionist judges. And ever since, says Levey, Democrats have marred confirmation hearings. ‘Republicans get together and we say “we’re too nice”.’

...Due to the seats kept open by McConnell, the Trump administration has filled the bench at a record rate – especially in the circuits. President Trump’s 30 appellate judges are nearly double those appointed by President Obama in his first two years. Already comprising 18 per cent of active circuit judges, they’ve swiftly swung the Republican share of the appellate bench from 41 to 53 per cent. Goldman says that number could reach 65 per cent in two years, and will skyrocket if Republicans hold the Presidency and Senate in 2020. ‘If Trump is reelected,’ says Levey, ‘then by the end of that term most or all of the circuits will tip.’...

...Levey, who serves on a Federalist leadership committee, replies that the Society merely plays a benign screening role, similar to that played by the American Bar Association (ABA) under Democratic presidents. ‘Basically every conservative lawyer in the country belongs to the Federalist Society,’ he says. ‘Under the Democrats the ABA has veto power, and the ABA leans as far left as the Federalist Society leans right.’...

...President Trump’s first appellate appointee, the Sixth Circuit’s Amul Thapar, recently urged the Supreme Court to stop deferring to agencies’ interpretation of their own rules. Trump-appointed justices Neil Gorsuch and Brett Kavanagh are also noted skeptics of judicial deference to the fourth branch. Reining in regulators is ‘one of the safest things you can predict,’ says Hellman.

Levey agrees: ‘I do think there will be pushback on the power of the administrative state.’ Both hasten to add that this is a politically neutral position and, ironically, the policies to suffer near term may be President Trump’s. But many liberals fear Republicans are playing a long game to hamper the Democratic regulators of the future...


bottom of page