President Trump may have numbers on his side when it comes to appointing judges to the federal judiciary, but the political realities and the ultimate impact on the balance of individual circuits are another set of issues entirely.
A recent post from the New York Times blog TheUpshot purports to show how the Trump administration has “huge power” to transform the judicial branch thanks to the number of vacancies and the age of judges.
— The Upshot (@UpshotNYT) February 14, 2017
Based on the sheer number of current judicial vacancies — and those seats expected to become vacant over the next four years — the piece concludes that Trump will have a sweeping opportunity to change the face of the federal judicial system for years to come.
Admittedly, the data journalism at work here is impressive and the numbers are solid. And such a prospect was a clear, driving force behind the 2016 election (in fact, it’s even hard to read the measured caveats at the end without believing that the Trump administration is sitting on some sort of windfall).
But the statistics don’t tell the whole story. In fact, they create a political illusion that is necessarily alarming to the Left and dangerously comforting for conservatives, who should be focused on reforming the entire misconception of judicial supremacy.
First off, it doesn’t take into account the fact that judges tend to drift leftward, or that Republicans have a demonstrably horrible track record on appointing originalist jurists (partially because there are so few people like Clarence Thomas in the system). Even Neil Gorsuch (much less a list of lesser known lower court picks) is unlikely to be anywhere near the level of Justice Thomas.
As infamously rejected Reagan Supreme Court pick Robert Bork said two decades ago:
Republican Presidents have used the nomination process in an effort to change the direction of the Court with almost zero results on the major issues. After twelve years of Presidents Reagan and Bush, each of whom made a determined effort to appoint Justices who would abide by the Constitution as originally understood, we seem farther than ever from a restrained Court. Between them, Reagan and Bush had five appointments. Only two try to relate their decisions to the Constitution as the men who wrote, proposed, and ratified it understood it. A majority of the Justices has become more arrogantly authoritarian than ever.
So even if Trump gets to completely fill every single vacancy in the federal judiciary — a Herculean task by itself — the likelihood that each of his appointees will use their lifetime tenure to fulfill his promise of appointing “conservative” judges is dubious at best.
Furthermore, the numbers can’t possibly take into account the difficulty of putting judges on Democrat-heavy district and circuit benches.
For example, according to data compiled at Conservative Review, the D.C. Circuit Court has a 7-4 Democrat majority right now, with only two of the four GOP appointees serving as consistent originalists. Furthermore, Obama appointed the four youngest on that specific bench. Almost every circuit will remain dominated by the Left, especially if Trump only gets one term.
The number of vacancies at the beginning of this presidency is only slightly more than other presidents. Ultimately, Obama had many vacancy opportunities later on in his presidency that actually swung the balance of circuits. In this case, given the orientation of each circuit by ideology and age, the limitation on the ability to get conservatives past home state senators in most circuits, and the fact that most of the ideological conservative judges are older, Trump’s ideological impact will likely be minimal.
Linda Hirshman, a noted liberal legal pundit, was right to observe in last 2015 that the liberal control of the lower courts is so complete that even if a Republican president gets to fill the current vacancies, “filling them wouldn’t make an immediate difference.”
TheUpshot’s stats surrounding senior status — a stage of semi-retirement — are also misleading. Due to the nature of the last Republican administration taking control 16 years ago, a great many of the judges retiring and going on senior status are Republicans from Reagan, Bush 41, and Bush 43. Six out of seven of the senior jurists on the D.C. Circuit are GOP appointees, and so are 70 percent on the Third Circuit and 75 percent on the 11th. Thus, the retirements of senior judges will actually hurt conservatives. The only circuits with more Democrat senior judges are the Second and Ninth, but the retirements of those judges won’t help the Right because those circuits are already beyond destroyed among the active younger judges on the bench.
And remember, senior judges have already triggered vacancies when they assumed “senior status.” No vacancy occurs when they retire completely from senior status.
Then there are the political realities of Trump simply being in the White House. Because of the high nature of vacancies to begin with, activist liberal judges are going to be less likely to retire or take senior status than their Republican counterparts who are more likely to be replaced with picks vetted by the administration’s judicial team.
Additionally, senior status doesn’t mean a judge stops ruling on cases, as many retain some level of casework even before they fully retire. This means that, even if some Democrat picks do spend more time playing golf and hanging out with the grandchildren, they’ll still be available to write opinions.
Even with a record number of vacancies, the chances of actually changing the progressive lean of more activist courts starts looking pretty bleak. But it gets worse when looking at the political realities of the confirmation process in the U.S. Senate.
As Conservative Review’s Daniel Horowitz points out elsewhere, the process to find solid Constitution-revering jurists will be undoubtedly stymied in the upper chamber thanks to federal statute, traditions, and the “blue slip” rule in the Senate Judiciary Committee:
One of the reasons why we have many liberal judges from Republican presidents — such as Judge Robart, a W appointee — is because Democrat senators can “blue slip” any nominee from their state they dislike. Under Senate tradition, the Judiciary Committee will refuse to hold a hearing on any nominee that is officially opposed by the home state senators. This is why it’s so hard to get even a marginally conservative judge approved from blue states, much less someone in the mold of Clarence Thomas.
Even in red states with two GOP senators, the judicial nominees often reflect a legal mirror image of their political views, which are moderate at best. And in states with senators from opposing parties, Republicans have often cut deals to approve only those nominees who are acceptable to their home state Democrat senator.
“The limitation of state allocation rules and blue slip obstruction are killers,” Horowitz concludes. “This is why despite swearing every time we will do a better job ‘appointing better judges,’ we wind up with more [Anthony] Kennedys and [John] Roberts on the lower courts. It’s also why outside of the geographical areas of the fifth and eighth circuits, it’s hard to appoint a string of reliable conservatives.”
Certainly the macro numbers look promising at a distance, but there are, as they say, “three kinds of lies: lies, damned lies, and statistics.” The broad statistics don’t speak to the reality of each circuit and the reality of the irremediably broken nature of the legal profession. After a while it should become obvious that if conservatives want a more constitutional federal court, they should look to congressional reform — not the flimsy promises of political appointment.
Author: Daniel Horowitz Nate Madden