Trump’s ability to reshape the judiciary may be overstated (Part 1 – Appellate Courts)

Trump’s ability to reshape the judiciary may be overstated (Part 1 – Appellate Courts)

Year One of President Trump’s much-vaunted “judge story” was far more successful than anyone could have expected.

Trump nominated and confirmed more appellate circuit court judges in his first year than any modern president. His judges were, on average, just 50 years old and all of them were well-credentialed conservatives. Several are potential SCOTUS nominees.

But despite the speed, he’s appointed just 6.7% of circuit judges and 0.9% of district judges.

In this post, and another to follow, I’ll examine how Trump can expand these percentages during the remaining three-quarters of his first term. It all depends on three things: (1) retirement of Democratic-appointed judges; (2) Senate Republicans discarding traditions that slow down and thwart conservative nominees from blue states; and (3) most obviously, the GOP actually keeping the Senate in 2018.

As most readers know, the unusually high number of vacancies, coupled with the extinction of the filibuster, means that Trump can have an unusually rapid and deep impact on the federal courts in just four years. In fact, if (2) and (3) actually happen, Trump will probably appoint more judges in one term than any president since Jimmy Carter.

How fortunes have changed since last February, when the sudden death of Justice Scalia seemed poised to deliver a liberal Supreme Court majority for the first time in most people’s lives. Now, the late justice’s disciples are popping champagne at Federalist Society banquets and eyeing Kennedy’s seat, while the Notorious RBG fan club has pinned its hopes to a Canadian air force exercise regimen, fervently praying that the Court’s 84-year old liberal anchor will outlast Trump.

Despite the reversal, there’s no reason for anyone to feel too triumphant or too defeated. Individual presidents can’t entrench a liberal or conservative judiciary for more than maybe 10 years, unless they get two-terms, nominate only 40 year-olds and keep the Senate the whole time. In fact, as long as no party holds the White House for more than 12 years, a two-term president is pretty much guaranteed to leave office with a majority of federal judges “belonging” to his party. (Going forward, I’ll use “Democrat” and “Republican” as shorthand for Democratic-appointed and Republican-appointed judges.)

For example, when Obama took office, only the Ninth Circuit was majority-Democrat; when he left, 8 of 12 regional circuits had been flipped. If Trump gets two terms, at least 10 of 12 would be majority-Republican upon his departure. If a Democrat is elected after Trump, he or she would get to replace a ton of aging W. appointees and many courts would skew left again. There is simply no way to “keep control of the judiciary for decades” unless one party stops winning the White House.

And as it were, Bill Clinton actually inherited a similar number of vacancies as Trump, so Trump’s position here is not nearly as “unprecedented” as it has been portrayed.

These facts have not lowered the blood pressure of Democrats. On this NYT report on Trump’s judicial appointments, the top reader comment is:

This amounts to a conspiracy against democracy. If we ever return to regular order in this country, all judicial appointments made by this lawless majority need to be reviewed.

But as observed in a recent piece by Zoe Tillman, a legal reporter at Buzzfeed, the conspiracy—clever as it is—has a crucial bottleneck: the retirement of Democratic-appointed judges.

I. Judges on Liberal Courts Are Probably Reluctant to Retire Under Trump

Vacancies get created when active judges resign, die or take a form of semi-retirement called “senior status.” Tillman managed to get anonymous interviews from two circuit judges—one appointed by President Clinton, and the other by President Obama.

“This president is someone who I am just so anxious about what he might do, and also the quality of some of the nominees, some of whom have now withdrawn,” the Obama appointee told Tillman. The Clinton judge said the same. “Given the caliber of nominees I’m seeing, I’m not comfortable creating a spot that might be filled by someone consistent with the qualifications, or lack of qualifications, of some of the folks I’ve seen nominated.”

Given that people who hate Trump tend to really, really, really hate him, I suspect that some judges would rather issue opinions while bedridden and attached to a respirator than give Trump their seat. From quickly eyeballing the vacancy roster, it appears that around 70% of post-inauguration openings on the district courts have been created by Republicans. If we look at the equivalent period eight years ago, district vacancies were roughly 50–50 partisan-wise. We can’t draw strong conclusions from such limited data, but there’s a good chance that Democrats will not retire under Trump in the numbers that Republicans retired under Obama.

II. Most Remaining Circuit Vacancies Belong to Blue States

By now, most of the low-hanging judgeships already have pending nominees. In other words, the remaining vacancies largely belong to blue states, and to fill them the White House must get approval—a favorable blue-slip—from both home state senators, which will include Kirsten Gillibrand, Chuck Schumer, Corey Booker, Kamala Harris, Jeff Merkley, Dick Durban, and other anti-Trump stalwarts—some of them 2020 hopefuls and aware that any “cooperation” with Trump will be used against them. It will be simply impossible to get most Democrats to sign off on people like Don Willett or Amul Thapar. Of the known circuit vacancies, 16 of 23 are from states with a Democratic senator whose surname is not Donnelly, Heitkamp, Tester, Manchin or McCaskill.

That being said, blue slips may very well go the way of the filibuster. Chuck Grassley, chairman of the Senate Judiciary Committee, ignored Al Franken’s veto of David Stras for the Eighth Circuit, but no one knows if he’s dispensing with blue slips for all circuit nominees. One thing is for sure: if they’re not 86’d fast, the confirmation machine will grind to a halt. Democrats aren’t wrong to hold out—in fact, they have no choice. Both parties are, for reasons that are beyond this post, locked in a tit-for-tat death spiral of escalation to keep control of the judiciary.

In fact, if the GOP loses the Senate, it’s over. Confirmations will be rarer than White House victories in the Ninth Circuit. So everything here is based on the assumption the GOP hangs on in November.

III. Circuit-by-Circuit Analysis

In this post, I’ll only examine the appellate/circuit courts, and deal with the district courts in a forthcoming one.

Ilya Shapiro, together with J. Aaron Barnes, just wrote an excellent circuit-by-circuit vacancy analysis. I happen to think they’re overly optimistic though, especially on the Fourth and Ninth Circuits.

By my count, the circuits are split 81D–71R, with 15 vacancies (we ignore the Federal Circuit since it handles patent issues). So once the remaining vacancies are filled, a slim majority of judges will be Republicans. Of course, partisan composition won’t be evenly distributed, so some courts will be very conservative while some will be very liberal.

But partisan makeup isn’t always a perfect proxy: the Eleventh Circuit is 8D–4R, but is actually a very centrist court. More vacancies on it would be certainly be desirable, but it’s not that important to get a Republican majority on it.

The Seventh Circuit has had only three Democrats in the past few years, yet is probably to the left of the 11th Circuit. As Shapiro and Barnes point out, Trump could literally rebuild this court.

The Seventh Circuit has eleven full-time seats but only eight active judges, one of them the recently confirmed Judge Amy Coney Barrett. With an additional five judges currently eligible to take senior status (four of whom were appointed by a Republican president), it’s conceivable that President Trump could appoint as many as eight judges here in his first term alone, constituting over three-quarters of the whole court!

In fact, this is the only court Trump can change so dramatically.

He can’t do much on the First Circuit since it has only 6 judges and no vacancies. The Second and Third Circuits lean left, but not that sharply. Trump can tie the 3rd at 7D–7R and narrow the 2nd to 7D–6R. The Fifth and Eight Circuits are already reliably right-leaning, and both will become more “durably conservative” since they’re picking up younger Trump judges. The Sixth Circuit has generally been a crapshoot for conservatives, but will be nudged right by its 3 new Trump appointees—the odds of drawing a conservative panel have climbed to 73%. The Tenth Circuit is 7D–5R, but there are two senior-eligible Clinton judges and the court is already pretty center-of-the-road.

But…

IV. The Fourth, Ninth and D.C. Circuits Can’t be Flipped in One Term

Under the current system, Congress and the president will honor a single district judge’s nationwide injunction, allowing any region of the country to freeze federal policies for months until Roberts and Kennedy are ready to intervene. Because of this, Trump can be judicially lame-ducked as long as Resistance-sympathetic jurists dominate in even a few places.

And dominate they do in the Fourth, Ninth and D.C. Circuits. Nearly every injunction against the White House has come from district courts in these regions. The ACLU and blue state attorney generals are strategically going to these courts and, in sum, arguing that the Constitution and Administrative Procedure Act require the preservation of every Obama-era policy. Indeed, N.Y. Governor Andrew Cuomo is now suggesting that even the Congressionally-enacted tax plan is unconstitutional.

If Trump serves for 8 years, he would certainly tip the Ninth and D.C. Circuits, and probably even the Fourth. But he can still make meaningful inroads in just one term.

Take the Ninth Circuit, which has been locked in a power struggle with the White House since February when it affirmed a worldwide injunction against the first travel EO. As it happens, Trump can actually nudge this court to the right immediately. The circuit has 29 authorized judgeships, and currently, one seat was filled by Carter, 10 seats by Clinton, 6 by G.W. Bush and 7 by Obama. 5 seats are vacant, and two more judges will take senior status next year. One of the 10 Clinton judges, Richard Tallman—who will be going senior next year—is conservative-leaning and was appointed as a compromise.

Given this composition, the odds of drawing a panel with at least two conservatives are just 19.4%. They’re a bit higher due to the presence of senior judges—probably around 23%.

The White House and Senate definitely should’ve attended to the Ninth Circuit vacancies already, but haven’t because of blue-slips. Trump has nominated only Ryan Wesley Bounds, and, of course, Oregon’s two senators immediately came out in opposition. No committee hearing has been scheduled.

Shapiro notes that the Clinton judges are old and some are likely to retire. He may be right, but I’m skeptical. Five are under 70, and the four judges over 70 are quite liberal—three of them (Berzon, Gould and Paez) have written opinions opposing the travel EOs. Stephen Reinhardt, the 86 year-old Carter judge, has denounced Trump’s deportation policies. He has been eligible for senior status for 20 years.

These judges are literally being credited with “saving democracy” by the Twitter legal community, media and Democratic politicians. I don’t see why they would abandon such enviable posts unless forced to by medical necessity.

But if Trump manages to fill the 7 certain vacancies with solid conservatives (no easy feat), the balance will flip to 17D–12R, and the odds of drawing a conservative panel will jump to around 40% once senior judges are counted. If 3+ Democrats decide to retire, Trump could, theoretically, flip the Ninth Circuit by the end of his first term.

Things are gloomier for conservatives over by the Atlantic.

The GOP has been checkmated on the Fourth Circuit, which hears appeals from VA, MD, NC, SC and WV. Senate Democrats swiped four vacancies from W., (to be fair, Republicans had stolen two from Clinton) and Obama made six solid liberal appointments. In any case, the Circuit is now 10D–5R and, now rivals the Ninth Circuit in its hostility to the White House.

75.8% of its panels have two Democrats.

A vacancy from a Republican, Dennis Shedd, will open up at the end of January, and a conservative Democrat, William Traxler, will go senior at the end of August. Both seats belong to South Carolina, so there won’t be any blue slip delays.

The situation is similar on the all-important D.C. Circuit. Obama got to replace four Republican appointees, tipping the court from 7R–3D to 7D–4R in less than two years (the math works because Democrats stopped W. from filling John Roberts’ vacated D.C. Circuit seat). Obama’s picks are well under 60, deeply liberal and will serve for at least 15 more years. There are two 75+ Clinton appointees, and neither retired under Obama, suggesting they very much enjoy their jobs. But because 75 and 78 are pretty old for active judges, there’s still a good chance Trump gets to replace one of them in the next three years.

V. The Bottom-Line

The 7th Circuit will get significantly more conservative. The 5th, 6th and 8th will become slightly more conservative, but younger — the next Democrat won’t be able to flip them so easily. The 9th will shift appreciably if blue-slips are killed, but the 4th and D.C. probably won’t. Replacing retiring conservatives is obviously quite important, but in terms of judicial opposition to Trump’s agenda, the 4th, 9th and D.C. Circuits are going to continue to dog the White House until at least the end of his first term.

As a final thought, I’d bet a lot of Clinton appointees are waiting to see what happens next November. They’re likely figuring that if the Democrats reclaim the Senate, Trump’s finished in 2020 since his legislative agenda will be DOA. So they can then go senior after November 2018 knowing that their seats will be kept warm for President Warren or Harris to fill.

Soon, I’ll follow-up with a similar report on the district courts. If some procedural hurdles can be overcome, Trump could potentially appoint 30% of all district judges in just 4 years.

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