In his first term, President Donald Trump has appointed an almost unprecedented number of judges at the federal level. WGBH Morning Edition host Joe Mathieu spoke with Northeastern University law Professor and WGBH News legal analyst Daniel Medwed about the president's appointments and what they could mean for the law across the country. The transcript below has been edited for clarity.
Joe Mathieu: Let's talk numbers first. How many judges has the president appointed? How does that compare to efforts of past presidents around this time?
Daniel Medwed: Well, at the moment, he's appointed more than 190 federal judges, including 50 appellate judges and, of course, two Supreme Court justices, Neil Gorsuch and Brett Kavanaugh. Based on current models, he may have appointed a full one-quarter of the federal bench by the end of this term. Now, by way of comparison, no president since Ronald Reagan has even come close to this massive and rapid clip of filling judicial vacancies. Actually, to be fair, Bill Clinton was just a little bit shy of Trump at this juncture in his first term.
Mathieu: A number of these judges are really young, right? That would obviously mean that they'll have this job for a while.
Medwed: Absolutely. That's a key part of the Republican strategy here: Get a bunch of judges who are in their 40s and 50s on the bench for a long time. Under Article 3 of our federal constitution, most federal judges enjoy lifetime tenure, so they're going to be there for decades. Now what's troubling, regardless of where you fall on the political spectrum, is that many of these judges have faced very valid questions about their qualifications, and the ABA has given them less than glowing recommendations before their appointments.
Mathieu: Locally, have these judges been appointed to federal courts in Massachusetts?
Medwed: Well, on the one hand, he has yet to make an appointment to the First Circuit Court of Appeals, which is the federal appeals court that covers Massachusetts and some of the neighboring states. But on the other hand, he has appointed several federal trial court judges — they're called district court judges — in nearby states: Connecticut, Maine and Rhode Island, to be specific.
Mathieu: So he's got his fingerprint on New England, to some extent.
Medwed: That's right.
Mathieu: So we have lots of young, presumably conservative judges now scattered in federal courts all over the country. What does that mean for all of us in terms of the nation? How will it affect cases going forward?
Medwed: I think it will affect cases in a number of ways. First, let's talk a little bit about criminal law. That's my area, I love to talk about criminal law. Of course, most crimes are prosecuted at the state court level. Your average assault or robbery or theft, that's a state court crime unless it involves interstate commerce, like a sophisticated white collar crime, or is a massive killing like the Boston Marathon bombing. But state prisoners interact and intersect with the federal system in a very specific way through what's called habeas corpus. After the end of your state court case, you can seek further review from a federal district court, a federal trial judge, and basically ask the state to justify why they have the body — that's what habeas corpus means — to justify the detention. It's a very important check through our federalist system on state courts and state law enforcement. I fear that a number of conservative judges on the federal bench will lead to a dilution of habeas corpus and it won't be this extraordinary remedy that, at least historically, it's been.
Mathieu: So how about civil cases, contract disputes, car accidents? Will those be litigated?
Medwed: Well, like much of the grist of the criminal mill, a lot of those types of ordinary civil cases — property disputes [and] contract disputes — also go to state court unless there's an explicit federal cause of action, like you have a right to sue under the federal Voting Rights Act or the Americans with Disabilities Act. But there's also a really important jurisdictional piece, a way to get into federal court in civil cases. It's called diversity of citizenship jurisdiction. So say a Massachusetts resident sues a New Hampshire resident for a personal injury [or] for some type of lawsuit or a contract dispute. You could file suit in state court or, because it involves citizens of different states, you could get into federal court. So what I think could happen is that defendants here might try to remove those state court cases to federal court based on the stereotype that conservative federal judges might not be very hospitable to big damage awards to plaintiffs and so on. So I think the ripple effects are potentially enormous.
