With Supreme Court decisions erroneously regarded as the supreme law of the land instead of the Constitution, everyone on the Right is clamoring to ensure that Trump makes the best Supreme Court pick(s) possible. But given that well under one percent of all federal civil and criminal cases make it to the Supreme Court, decisions coming out of the 13 federal courts of appeals ostensibly (and again, erroneously) serve as “the law of the land” for many critical social and political issues, as we so painfully witnessed with last week’s “9th Circus” ruling.
That is why it is at least as an important to fill the federal circuits with originalists as it is for the Supreme Court. However, if Trump is going to leave his mark on the judiciary, that would require taking bold measures to overturn established traditions so that each appeals court nominee would be more in the mold of Clarence Thomas than even a Neil Gorsuch, much less a John Roberts or Anthony Kennedy.
For those paying attention to how a mere district judge in one bad circuit can violate the national sovereignty, you need no tutorial on the importance of the lower courts.
In 2015, 54,244 cases were filed in the 12 regional courts of appeals (not including the specialized appeals court for the Federal Circuit) out of a total of 361,689 that began at the district level. At the same time, only about 80 cases were granted full review by the Supreme Court. In other words, the federal courts of appeals are ostensibly the court of last resort for most federal cases. And given that the Left has successfully redefined the Constitution, almost every political issue has become a federal case.
Even though many of the major cases broadly affecting public policy are granted review by the high court, many languish in the lower courts for years and never make it to the Supreme Court. Moreover, the Supreme Court is clearly influenced by the jurisprudential momentum of the lower courts. Given that most of the circuits are full of post-constitutionalists who make Anthony Kennedy look like James Madison, it creates a peer pressure in the legal community to move away from the Constitution as written.
Remember, gay marriage didn’t happen in a vacuum with the Obergefell case. Almost every district court and all but one of the circuits redefined marriage in one of the most anti-constitutional opinions of all time. We are witnessing a similar trend with lower courts chipping away at the “plenary power doctrine” on immigration in recent years.
Furthermore, justices will rarely take up a case expeditiously when there is no split decision among at least two circuit courts. Given that the lower courts are in such bad shape — with such a dearth of originalists — conservatives can rarely win in even one circuit on such bedrock issues as voter ID, religious conscience, and an array of immigration issues. The lower courts tee up the contours and the dynamics of the cases that reach the high court. Therefore, if we fail to change the personnel and the procedures of the lower courts, another two solid originalists on the Supreme Court (assuming one of the liberals dies or resigns from office) would have only a limited effect.
Keep in mind that most of the major cases of consequence pending before the Supreme Court have been appealed by conservatives because of bad lower court decisions. The tyranny begins and usually ends in the circuits. Given that Republicans have control of the federal government and most state governments, we will only be playing defense in the lower courts because that is where the Left will plant their flag, even more so than during the Obama era.
It’s not just the 9th Circus.
You could probably count on your fingers the number of true originalists (à la Clarence Thomas) on the circuit courts. While it’s arduous to game out the “ideology” of each judge and circuit, here is my preliminary attempt at an overview of the circuits.
First, we will begin with this infographic detailing the number of Republican appointees and Democrat appointees by circuit among active judges (not including semi-retired “senior judges”). The graphic also shows the strong influence of Obama’s eight years on the appeals courts and the immediate vacancies that can be filled by Trump.
A few observations stand out.
1. Among active judges, Democrats now have an outright majority on nine of the 13 circuits.
And as we will explain in a moment, the courts are in worse shape than this topline number would suggest because almost every Democrat-appointee is a post-constitutionalist while only half the GOP-appointees are conservatives and only relatively small number are true originalists. Just consider how two GOP-appointed judges were already involved in the immigration ruling, one of the most radical and harmful decisions of all-time.
2. There are 20 vacancies that Trump can and should fill immediately.
But Obama’s presidency was so strategic that it will take a long time to swing back a single circuit. Only 10 of those 20 are Democrat vacancies that would tilt the balance of a seat and most are not in circuits that will fundamentally alter the balance of most three-judge panels.
3. The all-important D.C. Circuit is now 7-4 majority Democrat appointees, with four judges appointed by Obama alone.
The D.C. Circuit is the second most influential court in the land on constitutional issues. Worse, while there are some solid senior judges, Janice Rogers Brown is the only real originalist left among the active judges, with Brett Kavanaugh a mostly reliable conservative. The D.C. Circuit is going to be a dumpster fire for the indefinite future. Moreover, if you drill down into the district level, the District Court for the District of Columbia has an 11-0 Democrat majority among active judges!
By the middle of the year, when all the current vacancies take effect, there will be 90 Democrat appointees, 69 GOP appointees, and 20 vacancies among active seats on the appeals courts. However, the circuit courts are really in much worse shape than even the top line numbers would suggest.
Remember, almost all of the cases in the appeals courts are decided by a randomly selected three-judge panel, which also includes the senior judges (although their caseload is reduced in varying degrees). While it is possible to request a full en banc review of a case by the full circuit, those reviews are relatively rare in most circuits. Due to the clear Democrat majority on nine of the circuits and the lack of originalists on most of those panels, the legal Left is almost always assured a favorable panel for whatever they are looking to do: redefine marriage, infringe upon religious liberty, throw out abortion regulations, block photo ID, etc.
On the other hand, we’d be lucky to find 15 originalists on the appeals courts who are every bit as conservative as the 90 Democrat appointees — and a number of Republican appointees — are liberal.
Now let’s take a look at the four circuits where there is a supposed GOP majority:
This is the easiest one to game out. The 6-3 GOP majority is extremely deceiving. This circuit is home to the infamous Richard Posner, a Reagan appointee who quite literally believes that the Constitution as adopted is outdated and should be disregarded. He wrote the 7th Circuit’s tyrannical gay marriage opinion, among many other bad decisions.
Only two of the nine active judges can be considered reliable originalists across the board: Michael Kanne and Dianne Sykes. While many conservative legal theorists have respected Frank Easterbrook for many years, he has shown that he doesn’t believe in an individual right to bear arms. The rest of the Republican appointees range from progressive to unreliable. Thus liberals can pretty much rely on a favorable three-judge panel for almost anything they want.
The 9-5 majority of GOP appointees is very misleading if one thinks this is an originalist-dominated circuit.
First, Judge Helene White, although appointed by Bush, is really a liberal Democrat who was selected by Michigan’s two Democrat senators as part of a deal. Jeffrey Sutton, another W appointee, wrote the court’s opinion upholding Obamacare. Out of the seven remaining GOP appointees, only Alice Batchelder could be counted among the most reliable originalists with a few others leaning conservative, such as Raymond Kethledge. Another conservative, Danny Boggs, just retired, so at best his vacancy will be a wash.
Thus, between the liberal active judges and a number of other liberal senior judges in this circuit, it’s hit or miss for conservatives in terms of getting a reliable three-judge panel. In fact, the far Left recently got a three-judge panel to say that transgenderism is settled law and helped promote Jill Stein’s crazy recount in Michigan!
The only two circuits that could remotely be considered conservative are the 5th and 8th circuits. However, even the fifth is not as good as its numbers would suggest. The panel certainly has its share of solid judges, with Edith Jones, Priscilla Owen, Jennifer Elrod, and Jerry Smith. But last year, conservatives couldn’t even get voter ID past the full panel because a few GOP appointees joined with the Left.
The 8th Circuit is probably the best panel in the country. However, that makes the three vacancies on the court somewhat moot because they’d be better served on other courts.
As you can see, although there is much hype surrounding the more than 100 vacancies on the court, they will not swing the balance in terms of the circuits. Only 20 of the vacancies are on appeals courts, of which only 10 are Democrat seats, and many of them are on circuits that are irremediably broken or on the 8th Circuit, which is already good.
Moreover, the prognosis for the future is grim. Many Democrat judges will view Trump as anathema that they will not retire under his watch. A quick glance at the vacancy list shows that all five of the circuit court judges who retired since Trump won the election were Republican, as were most of the district court retirees. Thus the trend is not indicative of a host of opportunities to flip the balance of the circuits. Which is one more reason why we need wholesale judicial reform in addition to filling vacancies.
Nonetheless, it is important that Trump not wait the traditional six months or so to start the process of filling lower court vacancies. While I don’t believe it will fundamentally alter the balance of the courts, the better judges who are in the circuits make it more likely we will get lucky and have a decent three-judge panel for random, important cases.
However, if Trump is to make his appointments meaningful, he would have to depart from longstanding tradition that gives home state senators major input on nominees and allows them to potentially scuttle the nomination.
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 problem of home state RINOS and Democrats is further exacerbated by the fact that tradition tends to bind the president to maintaining state continuity in seats within a circuit court. According to CRS, just 13 percent of circuit court appointments since the Kennedy administration have changed state representation from the vacant seat. And it is downright mandated by law that every state has at least one judge on the given circuit court and that every nominee must at least reside within the circuit at the time of the appointment.
Consequently, if a president wants to fill a vacant seat from a state with a Democrat senator, he would be constrained by tradition from filling it with someone from a state with two Republicans, thereby avoiding a blue slip problem.
To begin with, it’s so hard to find Clarence Thomases in this profession. The limitation of state allocation rules and blue slip obstruction are killers. This is why despite swearing every time we will do a better job “appointing better judges,” we wind up with more Kennedys and 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. There are three vacancies from the 3rd Circuit, for example, but it will be very hard to fill them with originalists given the geographical problem.
As such, Trump would have to expend as much political capital trying to “appoint better judges” in a meaningful way as he would by pursuing judicial reform. Yet the latter would actually solve the problem in the long run.
It’s quite evident that we still need judicial reform, but in the meantime Trump would be wise to fill the vacancies aggressively on circuit courts and make it clear to Senate Republicans that they are to promote originalists with the same gusto that Obama used to confirm anti-constitutionalists.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.