WASHINGTON — Supreme Court nominee Amy Coney Barrett is not just a conservative, she’s a relatively young conservative.
At 48, Barrett is the youngest person to be nominated to the nation’s highest court since Justice Clarence Thomas in 1991 and she exemplifies President Trump’s push to seed the federal judiciary with judges who could still be handing down rulings into the second half of the century.
The federal appellate judge cut a youthful figure on Saturday as she entered the White House Rose Garden with her husband and seven children, including two adopted from Haiti and her youngest son with Down syndrome.
“If confirmed, Justice Barrett will make history as the first mother of school-aged children ever to serve on the US Supreme Court,” Trump said in introducing his nominee.
Recent Republican presidents have sought to place young conservatives on the federal bench in hopes that they will have longer staying power and impact. But none has gone as far as Trump: A study from the Brookings Institution think tank found the median age of his appellate court picks— 48.2 years old — has been the lowest of any president in six decades through the first three years of a presidency. Some nominees have been as young as their early 30s.
“Long after Trump is out of Washington and wherever he is, he will still be having influence because he has positioned such a large number of them,” said Carl Tobias, a law professor at the University of Richmond who has studied the judicial selection process.
Trump has left his most lasting mark on the federal courts of appeals, the level just below the Supreme Court; his 50 appointments are more than any of his predecessors in their first three years since the mid-20th century, and he filled all 17 vacancies at the start of his term. His three Supreme Court picks — Barrett and Justices Neil Gorsuch, 53, and Brett Kavanaugh, 55 — have been at or below the 53-year-old average age of high court nominees.
The median ages of court of appeals appointees have been on an uneven decline since the 1960s and 70s, when they were in their mid-50s through the first three years of a president’s term. The median ages of Trump’s court of appeals appointees have been nine years younger than the median age of those appointed by Barack Obama through his first three years and nearly five years younger than those over his entire presidency, according to the Brookings analysis.
“It’s not as if he’s appointing a bunch of 20-years-olds,” said Russell Wheeler, the Brookings researcher who authored the study. “That is not a huge difference, but it will make some difference.”
Trump’s pledge to stack the Supreme Court and lower courts with rightward-leaning judges mobilized support for his 2016 presidential run, even among Republicans who had concerns about his other policies and personal behavior. He has touted the historic number of judicial nominees confirmed under his administration — 216 so far, about a quarter of all active judges in the three main federal court tiers — and their relative youth.
“The average age of circuit judges appointed by President Trump is less than 50 years old — a full 10 years younger than the average age of President Obama’s circuit nominees," boasted a White House statement last November.
As his administration has been mired in a pandemic, an economic collapse, and protests over police violence against Black Americans, Trump has again sought to make the judiciary a central issue to his campaign.
Lawyers and legal experts cautioned that the impact of his appointments could be overstated. Trump has boosted Republican-appointee majorities on four of the nation’s 13 appellate courts and secured thin Republican-appointee majorities on three others, according to the Brookings study. But the vast majority of cases that reach the appeals courts are noncontroversial, involving run-of-the-mill cases over business or individual disputes, and are decided by panels of three randomly-drawn judges.
Trump also has installed fewer judicial nominees in district courts, where a high number of judges are still recommended by their home state senators and tend to be appointed for their competence, rather than their ideology. And while the party of the president who appointed a nominee is one of the best predictors of how they will rule, it’s still not precise, according to the Brookings study.
“Just because a judge is appointed by Trump, you don’t know that the judge is going to vote conservative every time,” Wheeler said.
Still, recent changes in Senate procedure have increased the conservative composition of the appellate judiciary. And more than any other president, Trump has explicitly searched for nominees with clear conservative records and who have more openly worked on causes championed by Republicans, such as abortion, leaving little room for doubt about which way they will sway on major cases. Many have been affiliated with the Federalist Society, the nation’s largest group of conservative legal activists that was once on the fringe.
Trump’s judicial picks also have tended to be white and male, legal experts said.
“They are very young and very conservative,” Tobias said. “If you game it out, they will serve for three, four decades in these courts that make policy by resolving high-profile disputes — these are disputes that touch people’s rights. These are the issues people care about.”
For many Republicans, this is the moment they have waited for since President Nixon campaigned against the liberal court of Supreme Court Chief Justice Earl Warren in the late 1960s, calling for law-and-order justices who would abide by a strict interpretation of the Constitution. Carrie Severino, president of the Judicial Crisis Network, a conservative advocacy group, looked to that long-lasting impact of Trump’s appointments with excitement, saying he has greatly expanded the pool for future Supreme Court picks.
"He has so many options because he has appointed so many options to be appellate judges,” Severino said. “It is an embarrassment of riches in terms of the different people who now have a judicial record and who are qualified.”
But Trump’s overhaul of the judiciary, made possible in great part because Senate majority leader Mitch McConnell blocked President Obama from filling many vacancies, could lead to a dramatic scale-back of civil rights that justices have expanded since landmark Warren court rulings first sought to desegregate public schools, strike down bans on interracial marriage, and provide equal access to lawyers for people charged with crimes.
If Barrett, a federal appellate judge, is confirmed as expected to replace liberal Ruth Bader Ginsburg, she would create a solid 6-3 conservative majority on the Supreme Court.
Some of Trump’s picks on lower courts have been so young they have drawn complaints of inexperience. Ten have received a "not qualified” rating from the American Bar Association for failing to meet the group’s requirements of their judgeships. Among them was Justin Walker, 37. The Senate confirmed him last year to the US District Court for the Western District of Kentucky, though he was less than a decade out of law school and had not tried a case or ever served as co-counsel.
In May, just six months after he became a judge, Walker was nominated by Trump for a seat on the influential federal appeals court in Washington, D.C. Called a McConnell protégé, Walker was narrowly confirmed over Democratic objections and is now in line for a nomination to the Supreme Court.
The confirmation of another Trump pick the ABA deemed “not qualified” — Kathryn Mizelle, 33, an associate at the Jones Day law firm nominated to a US District Court in Florida — remains pending. The group found she hadn’t tried a case herself and did not have the minimum 12 years of experience as a lawyer required for the position.
“Her integrity and demeanor are not in question,” Randall Noel, chair of the ABA’s Standing Committee on the Federal Judiciary, wrote to leaders of the Senate Judiciary Committee before her confirmation hearing this month. “These attributes however simply do not compensate for the short time she has actually practiced law and her lack of meaningful trial experience.”
Judicial appointments are even more consequential because federal appellate judges rarely leave their lifetime posts and are difficult to impeach, said Amy Steigerwalt, a political science professor at Georgia State University who has researched the appointment process.
“Every other policy making decision or policy making opportunity that presidents have can be overturned by the next president,” she said. “You can’t overturn a judge.”
For perspective, Steigerwalt pointed to the last president to fill all the vacancies on federal appellate courts: Ronald Reagan. His nominees in the 1980s were so young that in 2008 the chief justices of 12 of the 13 circuits were still Reagan appointees, she said.
“The younger that the judges you are able to get confirmed, the more you are going to see that type of long-lasting policy impact," she said, adding that longer life expectancy trends only further magnified that power. "The rate of impact, the long-term impact is enormous. It cannot be overstated.”