Last Thursday, the Senate Judiciary Committee advanced 17 Trump judicial nominees, eight of them along an 11–10 partisan split. And yesterday, the White House announced its 10th wave of judicial nominees.
In a January 7 post, I examined Trump’s probable impact on the thirteen federal appellate courts. In this post, I’ll do the same for the 94 United States district courts—the federal trial courts in which all but a handful of cases originate.
One might wonder why I’m bothering with this. Isn’t it just minutiae and over-analysis?
Indeed, it ought to be, but because the federal courts now exert as much influence as Congress over public policy, it’s essential to pay attention to who occupies these lifetime offices. As we’ve seen in the past several years, any district judge can control federal policy across the entire nation for weeks until either an appellate court or SCOTUS decides to intervene.
Who has greater control of national policy right now: Senators from Hawaii, California and Washington, or district judges Alsup, Robart, Watson, Beetlestone and Kollar-Kotelly, who have in the past year thwarted the travel bans, mandated the indefinite continuation of DACA, blocked HHS religious exemptions to the ACA’s birth control requirements, invalidated refugee vetting and required the military to accept new transgender recruits?
There were certainly broad and questionable injunctions during the Obama presidency, but they spiraled out of control only in his last two years and were never as numerous or personally antagonistic. There have been nineteen national injunctions issued since the inauguration.
In short, judicial personnel matters no less than who is elected to Congress. Luckily for Trump, he has the potential to appoint more than 30 percent of the 677 Article III district judges in just four years. In eight, he would likely fill more than half the seats.
A full 18 percent district judgeships are vacant—123 out of 677. By my count, 40 took senior status between 1/20/2017 and 1/20/2018. Extrapolating to the next three years, we’d expect around another 120 seats to open up before 1/20/2021.
Since Trump has already appointed 10 district judges, we can place an upper bound on his first-term influence at around 253/677 ≈ 37.3%.
Of course, this is a serious overestimate for several reasons and the numbers, while encouraging, don’t fully capture the practical challenges. (1) I suspect that Trump experienced a first-year bump, with many Bush judges retiring due to change in administrations. (2) There are simply too many vacancies to fill in three years—the GOP only confirmed 10 district judges in a whole year. (3) Senate procedure and blue slips make confirmations take forever.
It’s these procedural speed bumps that are most lethal to Trump’s judicial ambitions. The White House can nominate people at breakneck speed, but it doesn’t matter if the Senate doesn’t schedule final votes. Right now, the minority party can require 30 hours of floor debate per nominee. It can also request that the SJC “hold over” committee votes on nominees—basically just delay them for no reason at all.
Not surprisingly, Democrats are insisting on 30 hours for nearly everyone, even on judges that they all ultimately vote for. Take David Nye, for instance. He was originally tapped by Obama for the federal court in Idaho. His nomination lapsed and Trump re-nominated him. Democrats forced 30 hours of debate, and then all voted for him. 100–0 confirmation.
That’s why, while Trump nominated more district judges in 2017 than did Obama in 2009, Obama still got more confirmed in his first year.
Based on the number of vacancies, Democrats could, theoretically, insist upon ~3,600 hours (5 months with no breaks, weekends or sleep!) of floor debate to fill all the seats. The Senate simply doesn’t have that kind of time. Because of this, McConnell and Grassley have focused on confirming the far more important circuit judges, whose opinions set precedent and can be overturned only by the Supreme Court. Sen. James Lankford (R-OK) has proposed shortening allowable debate time to two hours, which is pretty much Trump’s only shot at filling all the district vacancies.
While Grassley is willing to ignore blue slip vetoes of circuit nominees (he’s already done so twice), he is understandably reluctant to do so the same for district judges. “I’ll add that I’m less likely to proceed on a district court nominee who does not have two positive blue slips from home-state senators,” Grassley said in November. “But circuit courts cover multiple states. There’s less reason to defer to the views of a single state’s senator for such nominees.”
Because of blue slips, the White House has attended mainly to vacancies in red states. But these are less pressing because Trump isn’t getting sued in Alabama or Texas or South Carolina. The challenges are being brought in Maryland, Hawaii, Washington, New York and California. So far, Trump has nominated just one person to vacancies in these states—almost certainly because of the blue slip problem. On the Maryland federal court, the one that blocked the travel bans, seven of 10 judges were appointed by President Obama. Over on the Pacific Coast, the San Francisco federal court—the one that just declared it “arbitrary and capricious” to discontinue DACA due to concerns about executive overreach— has only one active Republican judge. The other 12 are Democrats and there are no vacancies.
As long as a few pockets of these judges remain, they can rule everyone from coast to coast for months.
A favorite forum for anti-Trump lawsuits has been the U.S. District Court for the District of Columbia, primus inter pares among the trial courts due to its jurisdiction over federal regulatory activity. It stands pretty lopsided at 11D–3R, with one vacancy. Obama alone appointed nine judges, and nearly all of them are under 60. The three Republicans were appointed by Trump in 2017. The remaining vacancy was supposed to go to Matthew Petersen, but we all saw the video and know what happened to him. Trump has not yet put forward a replacement.
As it so happens, the D.C. federal court offers a good example—the only example—of how Trump’s nomination successes have translated into a legal victory.
In November, Richard Cordray resigned as director of the Consumer Financial Protection Bureau and tried to install Leandra English, a politically-aligned bureaucrat, as acting director pending Senate confirmation of a presidential nominee. Trump just ignored her and tapped Mick Mulvaney to serve as interim head of the Bureau. English sought the services of a top-dollar Washington Resistance lawyer, Deepak Gupta, and brought an action against Trump and Mulvaney in the D.C. district court.
In a rare stroke of luck for Trump, the case was randomly assigned to Timothy J. Kelly, one of the president’s recent appointments. Kelly denied English’s request for a preliminary injunction declaring her the rightful head of the CFPB. The case is now being appealed to the D.C. Circuit.
But every other time the administration has been sued in this court, it has gotten a Democrat and lost.
Further up along the Acela corridor is the federal court in Manhattan—the famous Southern District of New York. In addition to having some level of jurisdiction over every major financial institution in the world, this court, for obvious reasons, also hears cases brought against President Trump personally. The balance is 21D–4R–3V, but the administration is, so far, batting .1000. George Daniels, a Clinton-appointee, recently dismissed a lawsuit alleging that Trump’s business holdings violate the Emoluments Clause.
Because there are 94 district courts, it’s obviously impossible to look at all of them. But I conclude with two main observations.
First, while we tend to focus on how judges approach federal policy, it’s important to appoint judges to conservative states to ensure that their state legislatures are allowed to actually pass laws. Federal judges can void any state law or election district simply by declaring it in conflict with the Equal Protection Clause. So in that respect, the Trump presidency should be immensely “liberating” for Republican-governed states.
Second, unless blue slips and procedural delays are watered down, Trump is barely going to get any appointments in liberal-leaning states and many vacancies across the nation will pass to the next president. But if Senate Republicans are willing to sacrifice the “deliberative character” of the Senate (a fanciful anachronism when parties can’t even agree to fund the government), Trump could appoint almost as many judges in one term as a president normally gets in two.
McConnell and Grassley have a choice: preserve Senate traditions that, in all likelihood will die with the next Democratic president, or use Trump’s presidency to produce tangible and durable benefits for conservatives on the federal bench.
[Featured Image: Trump Signs First Travel Order, January 28, 2017]
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