AYESHA RASCOE, HOST:
When Donald Trump returns to the White House in January, Republicans will control the Senate and, therefore, appointments to the federal bench. That's after Trump appointed more than 200 judges in his first term. Stephen Vladeck is a professor of law at Georgetown University and an expert on federal courts. He joins us now. Welcome to the program.
STEPHEN VLADECK: Thanks, Ayesha. Great to be with you.
RASCOE: So how different are federal courts today compared to when President-elect Trump first assumed office eight years ago?
VLADECK: Yeah. I mean, I think they're really quite different. One of the things that was a real hallmark of the judicial appointments during the first Trump administration wasn't just that they were Republican judges, Ayesha. It was that they were a particular kind, judges who were more willing to entertain novel constitutional arguments, judges who might feel less beholden to precedent. You know, now he'll have those four years of appointments plus dozens, if not hundreds, of judges who he'll be able to appoint in his second term.
RASCOE: But many of his policies during his first administration were stopped or delayed by federal judges. I'm thinking of the travel ban for majority-Muslim countries, his effort to end DACA and others. Can we expect that this time around, or is he more likely to face less resistance?
VLADECK: I think what we'll see is Democratic states and left-leaning interest groups trying to challenge Trump policies in those parts of the country where there might be a higher ratio of more sympathetic judges. I think the difference is that even if Democrats and, you know, other sort of critics of President Trump find some success in the lower courts, President Trump, you know, was able to put three justices on the Supreme Court, including Justice Barrett, right at the very end of his first term. That's a different majority for these policies than the 5-to-4 court that Trump had to deal with for almost all of this first term. I don't think he'll lose as many cases in the Supreme Court. And I think that's going to be a really interesting and important litmus test for just how much he's able to do in his second term.
RASCOE: Well, talk to me about the Supreme Court. As you mentioned, he'll have a 6-to-3 conservative majority. What's your assessment of how truly independent those six justices have been?
VLADECK: They've all been independent in the sense that I don't think any of them feel especially beholden to President Trump. The trickier question is, how much do we expect any or all of those six justices to actually stand up to President Trump if he really does something crazy? I mean, if he carries through, for example, on his campaign promise to try to end birthright citizenship - the most likely scenarios is that we see a bit of a split, at least with regard to the current composition of the court. The two most important figures in a second Trump term are absolutely going to be Chief Justice Roberts and Justice Barrett and exactly where they're going to draw the lines in cases where the Trump administration really tries to reach out and set new precedents.
RASCOE: Let's turn to the future of the Supreme Court. The two most conservative justices, Clarence Thomas and Samuel Alito, are in their mid-70s. If Trump does get two more appointments, how far-reaching would the effects of that be?
VLADECK: If that were to come to pass, overnight, it wouldn't change that much on the Supreme Court. The difference is it'll entrench that perspective, and it'll entrench those viewpoints. You know, if you replace a justice who's in their late-70s with a justice who's in their mid-40s, that's another maybe 25 to 30 years of having one of the nine seats on the Supreme Court occupied by someone whose views are so far out of kilter - right? - from sort of most mainstream American thought. That's the real impact, the decadeslong effect of those appointments, not the overnight effects.
RASCOE: President Biden does still have two months left in office - over two months left in office - and a Senate majority to go with it. What do you expect from him and the Democrats in the Senate?
VLADECK: So there's already a whole bunch of pending nominees that are in the Senate as we speak for lower court judgeships, and I think there's going to be a real effort by the Democrats to push as many of those through before January 3, when the Senate turns over.
But I think for all of the talk that we've seen on social media about whether someone like a Justice Sotomayor should retire so that President Biden could fill that seat in the next, you know, six or seven weeks, I think that's a bit, I don't know, extreme in the sense that, one, Justice Sotomayor knows better than we do what kind of shape she's in and how her health is. And two, it's not clear to me that the Democrats would even be able to get a new nominee through in that period of time. It's quite a risk to run if you're the Democrats and you're worried about the possibility of actually having a Justice Sotomayor retirement create a vacancy that a President Trump could fill.
RASCOE: That's Professor Stephen Vladeck of Georgetown University. Thank you so much for being with us.
VLADECK: Thank you. Transcript provided by NPR, Copyright NPR.
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