by Michael Hiltzik
Ryan D. Nelson is a model of a modern anti-regulation conservative and culture warrior. As a Justice Department lawyer under President George W. Bush, he oversaw that administration’s campaign to go easy on polluters and roll back environmental rules.
In private practice, he filed a brief for seven states arguing that governments shouldn’t be forced to upgrade their buildings in conformance with the Americans With Disabilities Act if the changes would cost money. His argument in the first case was rejected by an appellate court, and in the second by the Supreme Court.
Nelson’s waffling about the human contribution to global warming at a Senate hearing on his nomination by President Donald Trump to a top Interior Department post prompted Trump to withdraw his nomination in 2018.
Instead, Trump named him to the U.S. 9th Circuit Court of Appeals, which has jurisdiction over California and seven other Western states.
The Republican Senate confirmed him, and he sits on that court today. In May, he was the author of a 2-1 majority opinion declaring unconstitutional California’s ban on the sale of semiautomatic weapons to those under 21.
The ruling, handed down on May 11, less than two weeks before an 18-year-old gunman used a similar weapon to slaughter 19 schoolchildren and two adults in Uvalde, Texas, evoked an America beleaguered by frontier lawlessness.
Nelson, 48, is just one of a legion of youthful conservative judges appointed to lifetime terms by Trump in what may be the most far-reaching and radical remaking of the federal judiciary in American history.
Trump was able, in his sole term, to fill 28% of the 816 federal judicial seats, including 30% of the appellate judgeships and three of the nine Supreme Court seats, giving the latter court a potent 6-3 conservative majority. In this effort he was abetted by a Republican Senate majority that refused to fill open seats under President Obama and hastened Trump’s appointees onto the bench.
The GOP’s blocking of Obama’s nomination of Merrick Garland to the Supreme Court is the best-known example of Republican obstruction, but once it gained a Senate majority it slow-walked Obama’s nominations to the rest of the appellate bench, yielding a surfeit of vacancies for Trump to fill.
“Trump ran on changing the judiciary as a political point,” said Shira Scheindlin, a former federal judge in New York who is co-chair of the Lawyers’ Committee for Civil Rights Under Law. “He said, ‘I will appoint judges who will overturn [Roe vs. Wade]. I will appoint judges who will protect your guns.’ He said all along this was a political issue for him, and he did move at lightning speed.”
Indeed, despite opinion polls consistently showing that a strong majority of Americans want the Supreme Court to uphold Roe vs. Wade, the 1973 opinion guaranteeing abortion rights nationwide, the court appears poised to overturn the ruling, perhaps within days or weeks, in a case involving a draconian Mississippi antiabortion law.
A majority of Americans favor stricter gun safety regulations, but those are also threatened by a pending ruling on New York regulations.
Trump outsourced the naming and vetting of Supreme Court candidates to the Federalist Society, a conservative legal group founded during the Reagan presidency and funded by the Koch network, as legal reporter David A. Kaplan documented in his 2019 book about the Trump-era Supreme Court, “The Most Dangerous Branch.”
Trump’s goal was to move appellate courts, not only the Supreme Court, to the right. He succeeded, at least temporarily, in three circuits, including the 9th, which covers California and eight other states and with 29 active judges is the largest appellate court in the country.
Two of the new appointees rattled their colleagues with their obliviousness to traditional court decorum. One, Lawrence VanDyke, a former solicitor general in Nevada and Montana, earned an unusual “not qualified” rating from the American Bar Assn., which found him to be “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice, including procedural rules.”
Trump’s appointments have produced a string of rulings promoting partisan political and ideological positions.
During the pandemic, Trump-appointed judges often overturned state and local regulations aimed at limiting potential super-spreader gatherings such as indoor religious services. They kept alive a lawsuit filed by Texas and other red states to declare the Affordable Care Act unconstitutional (an argument ultimately rejected by the Supreme Court).
Trump-appointed district and appeals judges have upheld numerous state restrictions on abortion rights, including defunding of women’s health clinics. That’s against the backdrop of a pending Supreme Court decision in which the three judges appointed by Trump are widely expected to be part of a conservative majority overturning Roe vs. Wade, the 1973 decision that guaranteed the right to abortion nationwide.
Trump judges have voted to narrow the access of prison inmates and business employees to health care and disability benefits. They have turned a blind eye to state regulations aimed at undermining voting rights and overturned anti-discrimination laws designed to protect LGBTQ rights.
When it comes to another front-burner issue — gun control — Trump judges have been all-in on expanding gun rights and overturning state and local firearm regulations. Nelson’s ruling overturning the state’s ban on semiautomatic weapons was only one sign of a tsunami to come.
In 2020, writing for a 2-1 majority of the 9th Circuit Court of Appeals, Trump appointee Kenneth K. Lee overturned California’s ban on large capacity magazines, or LCMs, holding more than 10 rounds of ammunition, as an infringement of the Second Amendment right to bear arms.
The likelihood that Trump’s stamp on the federal judiciary will persist doesn’t derive only from the sheer number of his appointees occupying the bench. Trump also picked relatively young judges, whose judicial careers might last for three or four decades or more. The average age of Trump’s appointees to the appellate circuits was 47, five years younger than those selected by Obama, Scheindlin observed in an article last year.
Perhaps inevitably, Trump’s younger nominees came to the bench without significant judicial experience or even lawyerly seasoning. One example is Kathryn Kimball Mizelle, a federal judge in Orlando, who issued a widely ridiculed ruling striking down the federal mask mandate for airlines and other public transportation on April 18.
Mizelle was appointed in 2020 at the age of 33 by Trump after he had already lost reelection. She was confirmed on a party-line vote despite being deemed unqualified by the American Bar Assn., in part because she did not have close to the 12 years’ legal experience the bar considered the minimum for a federal judge. At the time of her nomination, Mizelle had participated in only two cases to the point of reaching a verdict — both as a legal intern, before she even had graduated from law school or obtained a law license.
It’s unclear what could shift the Supreme Court toward the center, other than persistent Democratic control of the White House and Senate and the passage of time. The American political and constitutional systems do not offer many options to change the ideological direction of a body endowed with lifetime appointments, other than expanding the size of the court or imposing term limits on justices.
Even under the most hospitable conditions, either option would probably take years to make a mark.