Although hes been thwarted so far on his legislative agenda before Congress, most notably on health care,President Donald Trump has a bigopportunity to reshape another branch of government outside his control: the federal judiciary. He has already moved swiftly to fill an unusual, inherited vacancy on the Supreme Court, and nowhis aides areworking theirway through a large number of openings on the lower federal courts. Some of his first picks are up for a Senate committee vote this month.
Justice Neil Gorsuch, with only a few months on the high court under his belt,alreadyembodiesthekind of influence Trump seeks to have on the third branch. Gorsuch, who replacedthe late Antonin Scalia, reestablished the 5-4 advantage conservatives long enjoyed when it came to most hot-button social issues. Gorsuch has cast consistently conservative votes on such topics as Trumps travel ban,gun rights, and the separation of church and state. And he doesnt even turn50 until August.
Its actually quite rare for anew president to find a Supreme Court vacancy already waiting.Trump, of course, encountered his good fortunecourtesy of Senate Majority Leader Mitch McConnells unprecedented 10-month refusal to consider President Barack Obamas nominee, U.S. Circuit Judge Merrick Garland. The last time a new presidenthad an inherited vacancywas back in 1881, when the beneficiary was President James Garfield.
But thiscongressional pocket veto of Garland, a 64-year-old moderate and chief of the influential U.S. Court of Appeals in Washington, was simply the most public manifestation of a longer-term strategy. After gaining control of the Senate in 2015, Republicans made it their mission to slow-walkObamas nominations for the lower courts. This effort contributed to the relatively large backlogof 107 vacancies ontrial and intermediate-appellate courts that Trump inherited. Thats more than what awaited four of Trumps five immediate predecessors, according to the public-affairs website Ballotpedia.Only President Bill Clinton had more initial vacancies, with 111. By contrast, Obama found only 54 lower-court vacancies when he took office, while President George W. Bush had84.Trumps starting batch of 107represents12percent of all890 federal judicial positions.
Those vacancies, and the ones to come as more judges retire (the number hasalready jumpedto 136 in the six months since inauguration) offer Trump the chance to sculptthe courts to his liking. During the campaign, hesaid he would appoint judges very much in the mold of Justice Scalia, a forceful conservative who unexpectedly died in February 2016. Perhaps more than some of his liberal detractors gave him credit for, Trump, 71, understood the importance of the judiciary to Republicans who were reluctant to support him. If you really like Donald Trump, thats great, but if you dont, you have to vote for me anyway, he said at a rally in Iowa last July. You know why? Supreme Court judges, Supreme Court judges.
As a candidate, Trump relied on suggestions from two establishment conservative groups,the Heritage Foundation and the Federalist Society, to assemble a list of 21 potential high court picks. Gorsuchwas on their list. Now Trump ispulling from the same compilationfor his lower-court choices. One example is Allison Eid, whom Trump has nominatedfor the vacancy created by Gorsuchsdeparturefromthe U.S. Court of Appeals for the Tenth Circuit in Denver. A member of the Colorado Supreme Court, Eid previously served as the states solicitor general and as a law clerk to the U.S. Supreme Courts right-wing elder, Justice Clarence Thomas.
Conservatives applauded Eidsselectionin June, as well as those of 10 other lawyers, judgesand scholars. Its a fantastic list, Carrie Severino, chief counsel of the right-leaning Judicial Crisis Network, said in apost on the National Reviews Bench Memos blog. Many of the nominees are well known in the conservative legal movement. Trump so far has nominated 15 people to the lower courts, including StephanosBibas, a law professor at the University of Pennsylvania who clerked for the Supreme Courts swing vote, Anthony Kennedy, and has argued several cases before the justices. Bibasis up for a seat on the U.S. Court of Appeals for the Third Circuit in Philadelphia. Professor Amy Coney Barrett of the University of Notre Dame, who previouslyclerked for Scalia, was nominated for a seat on the the Seventh Circuit in Chicago.
Administration officials know what they are looking for, saidJonathan Adler, a conservative constitutional law professor at Case Western Reserve University in Cleveland. Most of the appellate court nominees are current or former academics. That shows a desire for judges who will have an intellectual influence on the courts theyre placed on. Noah Feldman, a liberal professor at Harvard Law School and Bloomberg View columnist, volunteered that these are better picks than one might have expectedmaybe better than one could have hoped. Feldman attributed the quality of these early nominees to the administrations having outsourced judicial selection to elite conservative lawyers.
UnderSenate rules, confirmingjudicial nominations requires only a simple majority. That means Republicans need sway all but one of their 52-member caucus to push through a nominee, and even with just 50, they can count on Vice President Mike Pence as a tie-breaker. It used to be that a Supreme Court nominee required 60 votes, but to guarantee Gorsuchs ascension to what many Democrats bitterly considered Garlands seat, McConnell exercised the so-called nuclear option, and changed the rule.
In the end, Gorsuchreceived three Democratic votes and wasconfirmed54-45. The only other Trump nominee the Senate has voted on so far, AmulThapar, a former federal trial judge, took a seat on the Sixth Circuit in Cincinnati after being confirmed 52-44.
Despite Feldmans muted assessment of Trumps initial nominees, liberal activistssound glum. The whole situation is worrisome, saidNan Aron, president of the Alliance for Justice in Washington. Were seeing nominees, including Gorsuch, who are going to turn back the clock on hard-fought rights and liberties. The prospect of a Trump-shaped federal judiciary is all the more critical now, Aronadded, because the courts are the only institution that are providing a check against the administrations more extreme policies. As an example, she pointed to theban on travel from six majority-Muslim countries, which several lower courts blocked beforethe Supreme Court last month largely reinstated itand agreed to hear arguments on its lawfulnesscome fall.
The narrow Senate majority currently held by Republicans doesnt ensureconfirmation of every Trump nominee, however. Two White House choices that have infuriated Democratsandcould make moderate Republicans queasyare John Bush and Damien Schiff. Both men, who are scheduled for a votebeforethe Senate Judiciary Committee as soon as next week, have come under fire for hard-right views theyveexpressed asprolific bloggers.
Bush, 52, a Kentucky lawyer nominated to an appellate judgeship on the Sixth Circuit, posted(PDF) pseudonymously in 2008 that slavery and abortion have been the two greatest tragedies in our country and added that they stemmed from similar reasoning and activist justices at the Supreme Court, first in the DredScott decision [of 1857], and later in Roe. By that reasoning, justices such as AnthonyKennedywho have voted to uphold Roe v. Wade, the 1973 abortion-rights landmark, ought tobe condemned along with 19th century proponents of slavery. Questioned during a June 14 Judiciary Committee hearing, Bush said that in retrospect he regrets the post equating abortion and slavery and wouldnt allow his personal views tocolor his work as a judge.
Schiff, an attorney with the conservative Pacific Legal Foundation, is a nominee for a spot on the U.S. Court of Federal Claims, a specialized body that hears certain lawsuits against the government. In one 2007post, Schiffassailed Justice Kennedy, a conservative who sometimes sides with the Supreme Courtsliberal bloc. He called the 80-year-old justicea judicial prostitute prone to selling his vote, as it were, to four other justices in exchange for the high that comes from aggrandizement of power and influence, and the blandishments of the fawning media and legal academy. At the June 14 hearing, Schiff, 37, apologized for his harsh language and said his point wasnt to impugn or malign any person but to attack a certain style of judging that is frequently applauded in the media.
As it happens, rumorshave swirled lately in Washington that Kennedy, soon to turn 81, is considering retirement. His potential departurewould give Trump another important vacancy to fill. Given Kennedys critical role in several 5-4 victories for the liberal wing, it may be the most important of all.
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