It has recently become apparent that Donald J. Trump is filling up with America’s judicial system with judges at a rapid speed, including the appointment of Lawrence VanDyke. VanDyke received his Juris Doctor in 2005 from Harvard Law School and since has gone on to hold a variety of positions in the legal system. He served as a law clerk to Judge Janice Rogers Brown of the United States Court of Appeals for the District of Columbia Circuit. After serving as Solicitor General of Montana for a year (2013-2014), he resigned due to strain in the workplace. However, perhaps most interesting is that he was nominated by Donald J. Trump, to a seat on his court, in October 2019. VanDyke assumed office in the United States Court of Appeals for the Ninth Circuit on 2nd January 2020.
VanDyke was initially prevented from assuming office due to receiving a “Not Qualified” rating from the American Bar Association, partly due to his history of anti-LGBT views. In 2004, he expressed that he believed that there is “ample reason for concern that same-sex marriage will hurt families, and consequentially children and society”. Furthermore, 2010 VanDyke wrote an amicus brief in the Christian Legal Society v. Martinez case in which he argued that the group had a First Amendment right to exclude LGBTQ students from membership due to their sexual conduct violating the group’s beliefs. VanDyke during his confirmation hearing has argued he no longer holds these views, breaking down in tears when asked by Missouri GOP Sen. Josh Hawley if he would treat LGBTQ litigants unfairly. However, it leaves debate to be had. Do American people trust a judge who has before so staunchly opposed LGBTQ+ rights to be a part of their legal system? Do we really think VanDyke can recover from his past statements and play a part in cases that may affect many LGBTQ citizens’ rights?
The appointment of VanDyke illuminates a wider issue plaguing the American legal system right now. Trump is nominating and appointing judges extremely quickly. He knows this is happening, he knows what he is doing and often gloats about it and in fact thanks Barack Obama for not electing as many judges in his time in power. Trump has appointed and the Senate has confirmed 194 Article III federal judges in his four years of office, the second-highest amount from any one president. While Obama appointed 55 circuit court judges in his eight years in office, Trump has appointed the same number in half the time. A question to be asked is, if Trump is re-elected in 2020 will his almost record-breaking speed of appointing judges continue. But what does this mean for America’s justice system? It means a move towards a judiciary filled with conservative judges, a move which could have a dramatic effect on the social context in America.
However, what may be an even more worrying issue is that these judges are approved and confirmed by the Senate. While Trump is not innocent in changing the Judiciary so drastically, the Senate also needs to be held accountable. A president can recommend or appoint any judge, but this then has to be approved by the Senate, another layer of accountability. Due to the Republican majority in the Senate this accountability is redundant.
When looking at another one of the judges appointed by Trump the issue becomes increasingly worrying. Matthew Spencer Petersen was asked at his nomination hearing if he had ever argued a motion in state or federal court. His answer was no. In addition, the average age of the judges appointed by Trump is 10 years younger than those appointed by Obama. Appointing younger, less experienced judges hands the control to Trump and the Republicans as judges serve for life, creating a conservative justice system, that could potentially remain long after Trump is no longer President, upholding Republican beliefs and potentially leading to a struggle for justice within race and LGBTQ+ rights.
By filling vacancies with conservative judges, the legal future of America hangs in the balance. The concerns grow when you acknowledge the lack of diversity in Trump’s choices. The federal judiciary is made up of 73% white and 66% male and this is only set to increase as Trumps term draws to a close. Kristine Lucius, executive vice president for policy at the Leadership Conference on Civil and Human Rights herself has said that “President Trump is deliberately nominating the least diverse class of judicial nominees”. All this does is increase the ease with which Trump can enforce his legislation and policy with support from the legal system.
The appointment of VanDyke, along with the appointment of Petersen, raises questions about what the future of the American judiciary is to be like. Will the controversial views of VanDyke, alongside the inexperience of judges like Petersen, create an American legal system full of prejudice and injustice where minorities, such as LGBTQ+ citizens and People of Colour, struggle to have their voices heard and their rights represented? While the structure of the legal system in America can be confusing, it is important to think about the impact this will continue to have on American legal justice for years to come.