Trump to inherit more than 100 court vacancies, plans to reshape judiciary
By Philip Rucker and Robert Barnes
December 25 at 7:06 PM - The Washington Post
Donald Trump is set to inherit an uncommon number of vacancies in the federal
courts in addition to the open Supreme Court seat, giving the president-elect a
monumental opportunity to reshape the judiciary after taking office.
The estimated 103 judicial vacancies that President Obama is expected to hand
over to Trump in the Jan. 20 transition of power is nearly double the 54
openings Obama found eight years ago following George W. Bushfs presidency.
Confirmation of Obamafs judicial nominees slowed to a crawl after Republicans
took control of the Senate in 2015. Obama White House officials blame Senate
Republicans for what they characterize as an unprecedented level of obstruction
in blocking the Democratic presidentfs court picks.
The result is a multitude of openings throughout the federal circuit and
district courts that will allow the new Republican president to quickly make a
wide array of lifetime appointments.
State gun control laws, abortion restrictions, voter laws,
anti-discrimination measures and immigrant issues are all matters that are
increasingly heard by federal judges and will be influenced by the new
composition of the courts. Trump has vowed to choose ideologues in the mold of
the late Supreme Court justice Antonin Scalia, a conservative icon — a prospect
that has activists on the right giddy.
gIfm optimistic hefll come at this right out of the gate,h said Carrie
Severino, chief counsel and policy director of the Judicial Crisis Network, a
conservative group that has opposed many of Obamafs court choices.
gEvery president can expect to make a huge impact,h Severino added. g[Trump]
is unique in having campaigned really hard on this issue — the significance of
the courts, and of the Supreme Court in particular.h
The Supreme Court vacancy created by Scaliafs death in February was a
motivating issue for many conservative voters, especially evangelical
Christians, to turn out for Trump. Senate Republicans refused to hold even a
hearing on Obamafs nomination of Merrick Garland, the chief judge of the U.S.
Court of Appeals for the District of Columbia Circuit, for the Scalia seat.
Democrats accuse Senate Majority Leader Mitch McConnell (R-Ky.) and Sen.
Charles E. Grassley (R-Iowa), chairman of the Judiciary Committee, of
intentionally denying Obamafs nominees a fair hearing and running out the clock
in hopes that a Republican would succeed him, as Trump has.
Twenty-five of Obamafs court nominees were pending on the Senate floor, after
having been approved out of the committee with bipartisan support, but did not
get a vote before the Senate ended its two-year term before the holidays,
according to White House spokesman Eric Schultz.
gRepublican tactics have been shameful and will forever leave a stain on the
United States Senate,h Schultz said. gRepublican congressional dysfunction has
now metastasized to the third branch of government, and that is not a legacy to
be proud of.h
Trump spoke frequently about his intentions to put forward a more
conservative Supreme Court nominee as a way to galvanize the right.
gThe replacement of our beloved Justice Scalia will be a person of similar
views, principles and judicial philosophies,h Trump said in his acceptance
speech at the Republican National Convention. gVery important. This will be one
of the most important issues decided by this election.h
Although Trump spoke little on the campaign trail about the many vacancies on
lower courts, remaking the federal judiciary overall has been a priority of his
and of Vice President-elect Mike Pence, aides said.
Trumpfs older sister, Maryanne Trump Barry, is a senior judge on the U.S. Court of
Appeals for the 3rd Circuit. First appointed to the federal bench by President
Ronald Reagan, Barry was later elevated to the circuit court by President Bill
Clinton and is known for her relative moderation. She has spoken out against
womenfs claims of sexual harassment yet also struck down a New Jersey law
banning late-term abortions as unconstitutional.
Trump transition officials declined to comment on the process of selecting
nominees, but incoming White House Counsel Don McGahn is expected to play a key
role. Such groups as the Federalist Society and the Heritage Foundation have
been working with the Trump team to suggest possible candidates.
The judiciary also is a top priority for McConnell, who stands ready to help
the Trump White House identify candidates and grease the sometimes-laborious
Senate confirmation process.
The Trump administration and the Senate will be under pressure to quickly
install judges in courts around the country where cases are severely backlogged
because of long-vacant seats.
There are 38 so-called judicial emergencies, according to the nonpartisan
Judicial Conference, including in Texas, where seven seats have sat empty for
more than one year. The Obama administration and the statefs two conservative
Republican senators could not come to an agreement on nominees for the many
openings.
gThere is a real impact on real people,h said W. Neil Eggleston, Obamafs
White House counsel. gThere are people and companies who are not having their
cases heard because there are no judges around.h
The politics surrounding judicial vacancies are more poisonous than at any
time in recent memory, as the Garland episode has shown, with Democrats and
Republicans at loggerheads for much of the two years since McConnell took
leadership of the Senate.
Sen. Patrick J. Leahy (Vt.), the ranking Democrat on the Judiciary Committee,
issued a 4,200-word statement this month saying that by blocking Garland,
Republicans had committed gthe most outrageous act of obstruction and
irresponsibilityh that he had seen in his 42 years in the Senate.
Speaking more generally about circuit and district court vacancies, Leahy
added: gDespite the fact that there are dozens of qualified, consensus nominees
pending on the Senate floor right now, we will finish this Congress having
confirmed just 22 judicial nominees in two years. That is the lowest number
since Harry Truman was president.h
As with many subjects, judicial nomination data can be subject to
interpretation. Judicial vacancies ebb and flow somewhat randomly, considering
judges serve lifetime appointments until they choose to retire or die.
gIt is a challenge to make apples-to-apples comparisons at the end of a term
because vacancies donft happen in the same regular basis as they do in the
Senate or the White House,h said Don Stewart, a spokesman for McConnell. gTo
make an apples-to-apples comparison on a snapshot in time doesnft work.h
Despite Obamafs difficulty winning confirmation for his nominees, the Senate
has confirmed more of his nominees during his eight years as president, 329,
than it did Bushfs during his eight years in office, 326.
Beth Levine, a spokeswoman for Grassley, said, gThe White House has very
little to complain about because no matter how they spin it, the fact is that
President Obama had more judicial nominees confirmed than President Bush.h
Obama has used his nominations to systematically diversify the federal courts
to look more like the fast-changing country. He appointed far more female and
minority judges than any other president in history, and he has paid particular
attention to sexual orientation. When Obama took office, there was only one
openly gay or lesbian judge, and he appointed 11 more.
gThe president, my predecessors and I spent a significant amount of time
looking for all different kinds of diversity — racial, sexual orientation,
gender and professional background,h Eggleston said.
When Obama took office, only one of the 13 regional circuit courts had a
majority of Democratic-nominated judges, and as he leaves, nine do. While the
Supreme Court hears roughly 75 cases a year, tens of thousands are decided at
the circuit court level, affecting all who live in the states within those
circuits.
Russell Wheeler, an expert on judicial nominations at the Brookings
Institution, said Trump has a great opportunity to change the partisan split in
the federal courts. He predicted that by mid-2020, Republican appointees would
hold about half of the 673 district judgeships, as opposed to the current 34
percent. And among the 179 circuit court judgeships, Democratic appointees now
hold a slim majority, 51 percent, but that could fall to about 43 percent.
But Wheeler warned that there are important limitations to Trumpfs power. For
one thing, many of the judges most likely to leave their appointments in the
coming years were appointed by Republican presidents, meaning there will be
fewer opportunities to shift the partisan makeup.
And perhaps more importantly, 28 of the 50 states will be represented by at
least one Democratic senator, including large ones such as California, Florida
and New York. Senate leaders have a tradition of considering nominees only if
they are supported by both senators representing their state — and Democratic
senators are expected to bargain hard with the Trump administration, just as
Republican senators did with Obamafs.
gThe president doesnft always get exactly who he wants,h Wheeler said.