Trump’s ‘Historic’ Opportunity to Reshape the Federal Courts

Josh Siegel / January 04, 2017

After an election in which the Supreme Court proved to be a deciding factor in how people voted, President-elect Donald Trump has a significant opportunity to reshape the federal judiciary from top to bottom.

In addition to the vacant Supreme Court seat, Trump will inherit at least 103 openings in the lower courts—that is, district and circuit courts. They don’t get the same attention as the top court, but hear many more cases on a variety of issues involving federal law.

The 103 vacancies is nearly double the 54 openings President Barack Obama had upon taking office in 2009.

Another 12 federal judges have announced plans to leave their posts later this year.

While the Supreme Court reviews roughly 75 cases a year, the nation’s 13 regional circuit courts (or federal courts of appeals) heard more than 55,000 cases last year. The Supreme Court accepts 1 percent of the cases submitted to it, so in the great majority of cases, the circuit courts set a legal precedent when they decide appeals.

“If you are a cultural warrior watching for rulings on gay marriage and abortion, the Supreme Court is where you should look, but if you are a business, a taxpayer, an employee involved in a workplace dispute, or someone making a discrimination complaint, the circuit court is often the final word,” Curt Levey, a legal affairs fellow at FreedomWorks, said in an interview with The Daily Signal.

Conservative groups such as FreedomWorks say they expect Trump to quickly nominate justices to the lower courts, taking advantage of an opportunity given to him after Senate Republicans declined to confirm some of Obama’s judicial nominees the past few years.

Before the last Senate ended its two-year term, 25 of Obama’s court nominees did not get a vote on the floor after the Judiciary Committee approved them, The Washington Post reported.

The nonpartisan Judicial Conference of the United States, a national policymaking body for the federal courts created by Congress, has deemed 42 of the openings to be judicial emergencies, because cases in those jurisdictions are severely backlogged as a result of long-vacant seats.

Though Trump did not talk about the lower court openings on the campaign trail, the circuit courts often serve as a pipeline of judges considered qualified for a Supreme Court appointment. Of the current Supreme Court justices, only Elena Kagan, an Obama appointee, did not serve on a U.S. appeals court.

Trump could get additional opportunities to nominate Supreme Court justices, beyond Antonin Scalia’s replacement.

Justices Ruth Bader Ginsburg, 83, and Stephen Breyer, 78, both liberals, and Justice Anthony Kennedy, 80, considered a swing vote, may choose to retire soon.

District and circuit judges, like Supreme Court justices, serve lifetime appointments unless they retire before they die.

“President-elect Trump realizes this issue gave him the election, that there’s a historic interest in the Supreme Court and the courts in general, and that the public increasingly recognizes the significance of the president’s role in shaping the courts’ composition,” Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, said in an interview with The Daily Signal.

‘Big Fight’ Ahead

Democrats eager to strike back at Republicans are likely to try to thwart Trump’s effort to name more conservative judges, even if their ability to vote down potential judges is limited.

When Democrats controlled the Senate, they changed the rules to allow for confirmation of all presidential nominees, except for the Supreme Court, by a majority vote. Republicans now have a 52-vote majority.

But Senate leaders usually follow a tradition of considering lower court nominees only if they are supported by both senators representing the state in which the court is situated. Democratic senators are represented in 28 of the 50 states in the new Congress, including large ones such as California, Florida, and New York.

“Trump won’t automatically get who he wants,” Russell Wheeler, an expert on judicial nominations at the Brookings Institution, said in an interview with The Daily Signal. Wheeler added:

The Democrats will put up a big fight and say, ‘There were nominees for these vacancies which were bipartisan and you refused to bring them for a vote when you could have confirmed them in an afternoon.’ It will be the fight over the Scalia vacancy, only multiplied by 100 because there are a lot more players in this.

Obama’s Influence on Federal Courts

Even with Republicans’ resistance to Obama’s nominees in his second term, the outgoing president was able to dramatically reshape the federal judiciary.

In his eight years, Obama ended up with three more judicial confirmations than his Republican predecessor, President George W. Bush, 329 to 326.

Today, nine of the 13 circuit courts have a majority of justices appointed by a Democrat, compared to only one when Obama took office.

Wheeler says Trump’s appointments won’t significantly shift these appeals courts because only about 10 percent of the 179 circuit judgeships—17 of them—are vacant.

This is significant because the Supreme Court, experts say, tends to take cases on issues in which the circuit courts split on their rulings. So if more of the courts are liberal-leaning, they likely will be more cohesive in their decisions, and those rulings, without making it to the Supreme Court, would become the law of the land.

According to Wheeler’s research, the Republicans’ challenge today is compounded because the majority of district and circuit court judges who are most likely to retire in the coming years are Republican appointees.

Still, Wheeler predicted that by mid-2020, Republican appointees would hold about half of the 673 district judgeships, compared to the current 34 percent.

In the circuit courts, Wheeler expects Democratic appointees to fall from 51 percent to about 43 percent by mid-2020.

“It’s not insurmountable in four years for Trump to restore the courts almost to what they were before Obama took office,” FreedomWorks’ Levey said. “If he can do that, the chances are conservatives will be in great shape if Trump serves eight years.”

Policy Impact

Legal experts say many of Trump’s policy priorities could be affected by the makeup of the courts.

For example, if Trump fulfills his plans to repeal some Obama administration regulations dealing with issues such as the environment, labor, and energy development, he likely will meet resistance from opposition figures and groups who could challenge his changes in the federal courts.

“In general, what will happen is as the Trump administration and his Cabinet appointees try to pull back, amend, change, or otherwise void regulations issued by the Obama administration in many different areas, you will see a huge number of lawsuits filed by everyone from environmental groups to perhaps state attorneys general to try and stop regulations from being changed or rewritten,” Hans von Spakovsky, a senior legal fellow at The Heritage Foundation, said in an interview with The Daily Signal.

Ernest Young, a Duke University law professor focused on the federal courts, said he expects Democrat-led states to respond to Trump’s potential regulatory changes by issuing their own regulations on issues such as climate change and immigration.

If that happens, Young predicts the lower federal courts will see cases involving conflicts between federal and state law.

“Progressive policy experiments at the state level will raise questions about what extent the federal government can shut those down,” Young told The Daily Signal in an interview, adding:

I expect you will see more challenges dealing with the validation of state law—about how easy or hard it is for federal statutes to preempt state law. Some of those may go to the Supreme Court, but the lower courts are critical on issues like that.