Photo: George Walker IV/AP Photo
The Trump administration’s battle with the federal judiciary is one of the most prominent political stories of the year and also arguably the most fraught one, insofar as judges are the main barrier to the 47th president’s radical policies and virtually unlimited vision of executive power. This fight is playing out in courthouses across the country and will likely culminate in landmark decisions by the U.S. Supreme Court with its conservative majority and three Trump-appointed justices.
But on a separate track, the months and years just ahead will offer Trump a fresh and final opportunity to shape that same judiciary. And to the extent that the MAGA ideology is now focused so intensely on repudiating “activist judges” (you know, those who insist on limits to the president’s Article II powers), his ability to replace them when they retire with loyal foot soldiers enjoying lifetime tenures will be an important part of the Trump legacy — a sort of “court packing” scheme of his own, albeit one that is entirely constitutional.
On that separate track, Trump has now made his first federal judicial appointment of 2025, to the Sixth Circuit Court of Appeals, as Reuters reports:
U.S. President Donald Trump announced late on Thursday his first judicial nomination since returning to the White House as he moved to appoint a lawyer serving under Tennessee’s Republican attorney general to a seat on a federal appeals court.
Trump said in a social media post that he is nominating Whitney Hermandorfer, who has clerked for three members of the U.S. Supreme Court’s conservative majority, to fill a vacancy on the Cincinnati-based 6th U.S. Circuit Court of Appeals.
The seat became available for him to fill after Democratic President Joe Biden’s own nominee to the 6th Circuit failed to secure confirmation before he left office, following fierce opposition from Tennessee’s two Republican senators.
This situation reflects a twilight battle that went on mostly out of public view during the last months of the Biden administration, wherein Republican senators sought to limit judicial confirmations through a variety of stalling methods — an echo of the famous Mitch McConnell gambit in the last year of the Obama administration that denied the 44th president a Supreme Court nomination, though in that case Republican control of the Senate gave McConnell enormous powers of obstruction. In the end, according to the Pew Research Center’s accounting, Biden appointed 228 federal judges (including one Supreme Court justice and 45 Court of Appeals judges), basically matching the 226 judges Trump appointed during his first term, though Trump did have a better record at the higher levels of the judiciary (three Supreme Court justices and 54 Court of Appeals judges).
In both these administrations, the president’s party controlled the Senate for all four years. Thanks to the 53 seats Republicans won in 2024, along with a favorable 2026 Senate landscape and the vice-president’s tie-breaking vote, the odds are quite good that Trump will continue to enjoy the presumptive ability to get his judges confirmed before he leaves office in 2029. We don’t know, of course, exactly how many opportunities for appointments he will have, though a possible thumb on the scale could be provided by MAGA harassment of “activist judges” and their families, as the New York Times warned last month:
Mr. Trump’s allies outside government echo [his] attacks in even harsher ways. Media allies of Mr. Trump have published biographical details about judges’ children. Federal marshals recently warned judges about an increase in personal threats. After Judge John Coughenour temporarily blocked the Trump administration’s attempt to end birthright citizenship, he was the subject of a bomb threat hoax. No wonder that judges feel “mounting alarm over their physical security,” according to interviews by Reuters.
Another long-range dynamic, of course, is that Team Trump is seeking to shape and perhaps restrict what you might call the “supply chain” for judicial candidates via his campaign of intimidation against elite law firms.
In the end, the back-and-forth battles for control of the federal judiciary are becoming an increasingly significant “stake” in each presidential election, with the opportunity to hold the White House for extended periods (like the eight years of the Clinton, George W. Bush, and Obama presidencies) becoming especially important. It’s unclear whether Trump’s first-term bumper crop of Supreme Court openings will continue during his second term: the oldest justices right now are Trump’s most reliable allies on the Court, the 76-year-old Clarence Thomas and the 75-year-old Samuel Alito. But pretty clearly, whoever wins the presidency in 2028 will have a good chance to bend or break the judicial branch for years to come.
