One hundred days of Trump

President Donald J. Trump is about to complete his first 100 days in office. Many commentators have condemned him and his administration as a complete break with American history.

While his style is unique, his judicial policies mark broad continuity with what any Republican president would be doing. It should be no surprise that a Republican president would nominate conservatives for the federal bench. Likewise, succeeding an administration fond of regulating by executive order and "Dear Colleague" administrative pronouncements, it was also to be expected that a new Republican administration would undo those easily reversible policies quickly.

Regarding judicial nominations, the president's successful nomination of Judge Neil Gorsuch alone is probably more important than what most presidents do in their first 100 days.

The new justice and his backers learned the lessons of Judge Robert Bork's failed 1987 nomination. Sen. Mitch McConnell's gamble to block Judge Merrick Garland's nomination paid off for conservatives.

At his confirmation hearings, Gorsuch was prepared, personable and exemplary. Some Democrats, like former Solicitor General Neal Katyal, endorsed him. The hearings showed that Gorsuch is eminently qualified. And the Republicans had the votes to win confirmation.

Senate Democrats gave Trump an added bonus by inviting the end of filibusters against Supreme Court nominations. This die was cast when Sen. Harry Reid and senate Democrats eliminated the filibuster for all other executive and federal court nominations in 2013. If Trump has an opportunity to fill another Supreme Court seat, the path to confirmation was made easier by the Democrats' insistence on invoking the filibuster against Gorsuch.

Whether Gorsuch turns out to be a judicial conservative in the mold of Justices Clarence Thomas or Samuel Alito or the late Justice Antonin Scalia remains to be seen. Conservatives are hopeful that he can pull his mentor, Justice Anthony Kennedy, rightward in important cases. Time will tell. It is also conceivable that Kennedy could pull Gorsuch leftward in certain cases.

Liberals can take heart that Republican appointees in the recent past have not been reliable conservatives.

If Justices Scalia, Thomas and Alito are the standards, Justices David Souter, Sandra Day O'Connor, John Paul Stevens and Anthony Kennedy have been disappointments. Even Chief Justice John Roberts leaves something to be desired for conservatives, let alone, going further back in time, Justices Harry Blackmun, William Brennan and Earl Warren.

The phenomenon of Republican judges "evolving" once on the Supreme Court has been called the "Greenhouse effect," after former New York Times Supreme Court reporter Linda Greenhouse, who would praise the leftward movement of Republican appointees who showed "growth" in their rulings.

Democrats would have to go back to Justice Byron White to find a justice who regularly deviated from the court's left in most high-profile cases.

After 100 days, Trump's lower court nominations are not far along. His nomination of Judge Amul Thapar to the 6th U.S. Circuit Court of Appeals holds promise for the future. He is a fine judge, trained at Boalt Hall, and his South Asian heritage doesn't fit the narrative of Trump's administration being biased against minorities.

Thapar was on the rather long short list of potential Supreme Court nominees that Trump released during his campaign. That list had many superb state Supreme Court justices on it, like Joan Larsen of Michigan, Allison Eid of Colorado, David Stras of Minnesota, Thomas Lee of Utah and Don Willett of Texas.

Any Republican president would be considering these fine candidates for federal appointments. It will be no surprise at all when many of them are nominated and eventually gain confirmation.

On judicial appointments in California, there has been little concrete activity. Working with senators who are hostile to the administration will be difficult. Under President George W. Bush, there was a commission model where the president and California senators had three appointees to a committee to vet judicial candidates for each district.

That model is highly unlikely to be repeated because of actions by Sen. Barbara Boxer late in Bush's term. The Bush administration adhered to the system throughout its two terms, even after the Republicans regained the Senate majority after the 2002 election.

Democrats regained Senate control in the 2006 election. Instead of honoring the commission model as Bush had when the Senate went Republican, Boxer undid the deal. In 2007, the bi-partisan vetting committee for the Central District approved former Rep. Jim Rogan for a district court seat. When his nomination went to the Senate, Boxer blue-slipped Rogan and killed his nomination.

The Republicans are once-bitten, twice shy. It is likely that California nominations will move forward slowly as the administration and California senators figure out how to do business together.

The president's stewardship of the Justice Department has hit some bumps. Nominations of political appointees at sub-cabinet level have been slow, which also slows the implementation of administration policy further down the line.

Other stumbles have included the first rollout of immigration restrictions from certain predominantly Muslim countries, which was quickly enjoined. Now that about half of the Jones Day firm's Washington, D.C. office staffs the White House counsel's office, the administration should progress on its learning curve on how to navigate legal issues rapidly. Whether the administration will have more success overcoming rulings like Judge William Orrick's recent injunction regarding actions against sanctuary cities remains to be seen. Given the impressive legal minds that have joined the administration, Trump is likely to do better than his initial unsure steps would indicate.

The priorities for the Justice Department are undoubtedly changing. For example, pursuit of consent decrees against big city police departments will be a lower priority.

Those concerned with police practices are horrified at these changes. Similar concern should be raised for the victims of violence. When murder rates in cities like Chicago and Baltimore are skyrocketing, any president ought to be reassessing whether current federal policies are helping or hurting.

No Republican president would look at the chaos and violence of Chicago and direct the attorney general to haul the police department into federal court to review their practices.

A side effect of the new administration has been to turn progressive state officials into advocates for federalism. California Attorney General Xavier Becerra, among others, has discovered that the federal government should not be allowed to leverage aid to local governments to make those governments enforce federal law.

Courts will eventually find a balance between legitimate conditions on federal aid to local governments and the ransoming of local governments through threats of withholding federal aid. Limits on federal leveraging of aid for compliance should apply to both Republican and Democratic administrations.

Whether Trump's threats to withdraw funding from sanctuary cities will become reality remains to be seen. But his threats are hardly different from the Obama administration's threats to withdraw funding for local failure to follow progressive policies on, say, public bathrooms or Title IX. Federalism cannot only apply to protect progressive local policies.

In the realm of administrative law and executive orders, there have been no shortage of changes. Since the Obama administration relied extensively on executive orders and prosecutorial discretion in making policy, any Republican administration would be free to change course.

For example, the Trump administration is more aggressive in enforcing immigration law.

Likewise, it will probably not be sending out so-called "Dear Colleague" letters written by low-level government officials announcing broad new policies without even a rulemaking. The Obama Administration did this with universities, asserting new Title IX policies by letter while simultaneously threatening to withdraw funding if there was not compliance with the new pronouncements.

Such a letter from the Obama Department of Education forced universities to adopt a preponderance of evidence standard for sexual assault hearings. Whether that standard is appropriate is arguable. But such an important policy change should at least go through some kind of notice and comment rulemaking, or even require the passage of a statute.

The Trump administration has not uniformly removed all of Obama's executive actions. It has left an order requiring federal contractors not to discriminate against gays in place. It also has not been implacably hostile to Obamacare.

Some in the administration have expressed an ambition to reduce the role of the administrative state. Whether ambition becomes reality remains to be seen.

For those who view the administrative state as too powerful, Gorsuch's confirmation is a hopeful sign. He has written that courts should be less deferential to agencies. No administration could reduce the administrative state's importance in such a short time. Check back on this issue in four or eight years.

In style, Trump's administration is a remarkable departure from modern presidential history. Judging by its first 100 days, its judicial policy is not much different in substance from the last Bush administration and or than a Marco Rubio, Mitt Romney or even a Ted Cruz administration would have been.