President Donald Trump already gets to pick the top prosecutor in Washington. Last week, he tried to pick the police chief. Next, he could come for the courts.
Trump has repeatedly inserted himself in the affairs of Democrat-run cities like Los Angeles and New York during his second administration, activating the National Guard and applying political pressure to support law enforcement and immigration raids. But the nature of federal control over Washington could give Trump an opportunity to go even further, remaking the city’s local courts for years to come.
And as the president bashed city leaders last week from the White House, he suggested he may seize that opportunity.
For more than 50 years, judges who hear all the cases in Washington’s local courts — both criminal and civil — have been nominated by the president and confirmed by the Senate, similar to federal judicial appointments. But unlike the process for federal judges, the president’s ability to nominate candidates in the district is severely limited. The president is restricted to choosing from a roster of potential candidates recommended by a seven-member panel known as the Judicial Nomination Commission whose members are chosen by a mix of local officials, the D.C. Bar, the chief federal judge in Washington and the president.
The panel is not exactly a collection of MAGA enthusiasts. In fact, it includes one of Trump’s archnemeses: U.S. District Judge Tanya Chutkan, who previously oversaw Trump’s federal criminal case for trying to interfere with the 2020 election results. Trump has never had the chance to appoint a member of the panel — the lone presidential appointee was selected by Barack Obama for a five-year term and then reappointed by Joe Biden.
Conservative legal activists and others with close ties to Trump have argued that limiting the president’s judicial nominees to a preselected list of candidates violates the Constitution and undermines the president’s power to select his own judges.
“The process as it currently stands is unconstitutional,” said Zack Smith, senior legal fellow at the conservative Heritage Foundation. “The president would be well within his rights to make his own nominations to the D.C. Superior Court.”
The unique set up is a result of the Home Rule Act, a 1973 law passed by Congress establishing the district’s local government and codifying the modern judicial structure.
“The current system is somewhat of a historical anomaly,” Smith said. “For most of our nation’s history, for most of Washington, D.C.’s history, the process followed the normal process that every other federal judge in the country has to follow.”
Tom Fitton, a conservative activist and longtime Trump ally, agreed that the Judicial Nomination Commission, or JNC, infringes on the president’s constitutional authority to choose judges.
“Does it get any more executive than to appoint a judge?” asked Fitton, who serves as Trump’s only appointee to a separate board that reappoints local judges after their initial 15-year term expires. “The powers are pretty extraordinary.”
During a White House press conference last week, Trump indicated that senior Justice Department officials had already given him judicial recommendations for Washington’s local courts, potentially bypassing the panel’s selections.
“We’re going to be appointing some judges,” Trump told reporters at the White House press conference. “Pam [Bondi] recommended, Todd [Blanche] recommended some judges that are great. Jeanine [Pirro] recommended. Jeanine has given me three great candidates already.”
The White House and the Justice Department declined to comment on whether Trump plans to nominate candidates not approved by the JNC.
If Trump does circumvent the JNC, it would be just the latest example of the White House’s attempts to seize control over the mechanisms of law and order in Washington and would likely result in a new legal challenge similar to the ongoing lawsuit over control of the city’s police department.
Adding fuel to the fire is the fact that local courts have long been understaffed. As of July, there are 13 vacancies on the D.C. Superior Court and two vacancies on the D.C. Court of Appeals. The superior court serves as the district’s trial court, while the court of appeals is the district’s highest court, analogous to a state supreme court.
“There’s wide agreement in D.C., and I’m sure at the White House, that the court is overwhelmed,” Fitton said. “Those slots need to be filled, we can argue about the judicial philosophy and the laws and their approaches and things, but they’re completely overwhelmed over there. And it’s a major public safety issue.”
A person familiar with the nomination process granted anonymity to speak candidly said White House officials had previously indicated they were considering nominating additional candidates who had been recommended by the JNC.
“We have some people who were nominated when Trump was the president the last time that we know he liked,” the person said. “Some of these people are former prosecutors. I doubt very seriously they consider themselves to be easy on crime.”
Trump has nominated one person to the D.C. Superior Court during his second term. Edward O’Connell, a former prosecutor and current official in the U.S. Nuclear Regulatory Commission’s inspector general’s office, was recommended by the JNC in March and nominated by Trump in May. His nomination is pending in the Senate.
“If the president’s goal is to really rework the crime problem in Washington, the D.C. Superior Court plays a decent role in that,” said Mike Fragoso, a former Senate aide who worked on judicial confirmations and has argued that the JCN is unconstitutional.
Even if Trump challenges the JNC’s authority, there are a number of practical considerations to keep in mind, Fragoso said. Are there conservatives who even want the job? And would the Senate go along with a direct challenge to the Home Rule Act?
“Even if it is the president’s priority, managing how you do them ahead of lifetime appointments could be a little bit tricky,” Fragoso said. The Senate has historically prioritized using floor time to confirm federal judges over local Washington judges, which has contributed to the large number of vacancies on the city’s courts.
“If 20 percent of your people are not available, it’s hard to complete a job,” said the person familiar with the nomination process. “There’s a lot of talented people who want to do this for the right reason. We just want [Trump] to exercise his discretion.”
