Federal courts will now turn to the right, as President Donald Trump puts his hands on the judicial tiller.
Forget, for the moment, the sole Supreme Court vacancy that rivets so much political attention. Nationwide, an additional 113 federal judicial vacancies await immediate filling. These will be the judges who touch people’s lives, far more often than the justices on the highest court.
“I do think there is going to be a difference in their viewpoints,” said retired U.S. District Judge Oliver Wanger, now in private practice in Fresno, California. “They will be more, if you want to use the term, conservative.”
Six vacancies, for instance, currently riddle the U.S. Court of Federal Claims. The important but little-known D.C.-based court is now juggling consequential cases that range from a Yosemite National Park trademarked name dispute to a demand for money from Northern California and Oregon farmers who lost irrigation water in 2001.
Eighty-eight trial-level district court positions are empty. Six of the vacancies are in Florida, six are in California and 11 are in Texas, and the judges to be replaced by Trump include notable liberals, like the Los Angeles-based Margaret Morrow. Among her myriad rulings, Morrow in 2015 worried businesses when she kept alive a discrimination lawsuit by a “gestational surrogate” who was denied a lactation break.
After the employer failed to get the unusual discrimination case dismissed, it was later settled quietly.
“Filling many district vacancies would be valuable, because district judges are the ‘workhorses’ and decide most federal cases,” University of Richmond School of Law Professor Carl Tobias said, noting that many “judges are overwhelmed by crushing dockets.”
Most prominently, Trump has 17 vacancies to fill on the influential circuit courts of appeal. These include four seats on the sprawling and reputedly liberal 9th Circuit that oversees cases filed in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington and the Pacific territories of Guam and the Mariana Islands.
District judges are the ‘workhorses’ and decide most federal cases. Carl Tobias, University of Richmond School of Law
The circuit courts set precedent and, in effect, guide federal law in their respective regions, unless the Supreme Court steps in.
“There will be significant disagreement at the appellate court level,” Wanger predicted.
In July, for instance, three Democratic appointees on the U.S. Court of Appeals for the 4th Circuit, which covers the mid Atlantic states, overruled a Republican-appointed trial judge and struck down North Carolina’s law requiring voters to show photo ID when voting. The reasoning behind the appellate court’s ruling can now apply to voting law challenges in South Carolina and the other states within the circuit (Maryland, Virginia and West Virginia).
Their clout means appellate court seats ignite some of the hottest conflicts.
“Based on . . . Trump’s cabinet nominations, I am very concerned that he will try to advance judicial nominees that are outside the mainstream and that they will not reflect the diversity of the people they serve,” said former White House Deputy Counsel Christopher Kang.
The immediate vacancies among the 890 authorized federal judicial positions, moreover, will grow as additional judges leave active duty or pass away. Already, 13 have declared their intention to retire or take senior status this year; a form of pre-retirement in which they can choose how much work they want.
Some of the vacancies will entail simply swapping one Republican appointee for another. In other cases, like Morrow’s or the planned May 1, 2017, departure to senior status of Wichita-based U.S. District Judge J. Thomas Marten, Trump will get an explicit chance to replace a Democratic appointee.
This could prove meaningful. Conservatives, for instance, have decried some of the 65-year-old Marten’s past rulings that include a 2011 decision blocking a Kansas law that defunded Planned Parenthood. These same conservatives can now anticipate a replacement more to their liking.
“The justices that I am going to appoint will be pro-life,” Trump said during the third presidential debate last October. “They will have a conservative bent.”
In particular, Trump pledged as well to select court nominees who guard the Second Amendment’s right to bear firearms. This will tilt some courts in different directions. Among the vacancies that Trump will fill, for instance, is one left by Los Angeles-based appellate Judge Harry Pregerson of the 9th Circuit, a 93-year-old Democratic appointee who last year helped uphold laws that ban or restrict the carrying of concealed firearms in public.
Another 9th Circuit member to be replaced by Trump, 65-year-old Judge Barry Silverman, is a Democratic appointee who dissented from the decision upholding the gun restrictions. In other cases, too, Silverman has proven more conservative.
Over time, all of these individual appointments will add up. Though Senate Republicans last year eventually stalled confirmations, President Barack Obama during his two terms succeeded in getting 329 federal judges appointed to the bench.
Obama’s success, moreover, was accomplished in part through a Senate rule change authored by Democrats that will now, with leadership roles reversed, aid Trump and Senate Republicans. Instead of the 60 votes previously required to break a filibuster, nominees below the level of the Supreme Court will now need only a simple 51-vote majority.
Republicans now control the Senate with 52 GOP members, and can turn to Vice President Mike Pence in the event of a tie.
Particularly at the district court level, where judges render individual decisions but do not set broader precedent, Republican senators will play a key role in judicial selections. Texas Republican Sens. Ted Cruz and John Cornyn, for instance, have established a Federal Judicial Evaluation Committee, a bipartisan panel of attorneys to screen contenders.
“I think . . . Trump will be surprised to learn how much power home-state senators wield in the judicial nomination process,” Kang said.
CORRECTION: An earlier version of this story wrongly described Judge Barry Silverman’s position on a case involving gun restrictions. Silverman dissented from the ruling upholding the restrictions.