Trump Agenda’s Achilles Heel: 129 Judicial Vacancies

President Donald Trump watched as a federal judge in Hawaii put his revised travel ban on hold, just weeks before another judge in California curtailed his authority to punish “sanctuary” cities and counties.

Both judges have something in common: They got their jobs by way of appointment by former President Barack Obama. The former president also appointed one of the appeals court judges in San Francisco who upheld a freeze on Trump’s original travel ban. One of the other three judges on that panel was an appointee of former President Jimmy Carter.

“That’s why he needs to start getting as many actual judicial conservatives — people who will enforce the Constitution — as he can.”

Trump’s frustrations in court are a reminder that while the Supreme Court gets outsized attention, it is the hundreds of judges in the district and appellate courts who settle most of the country’s legal disputes. And after eight years of Obama, Democratic-appointed judges populate the courts at all levels.

“That’s why it’s important to fill these slots,” said Hans von Spakovsky, a senior legal fellow at the Heritage Foundation’s Meese Center for Legal and Judicial Studies. “That’s why he needs to start getting as many actual judicial conservatives — people who will enforce the Constitution — as he can.”

According to the Administrative Office of the U.S. Courts, there currently are 129 vacancies in the federal court system. Another 17 judges have indicated they will retire or take semi-retired “senior” status by the end of next March.

It represents a huge opportunity for Trump to put his stamp on the courts that in many ways could exceed the impact of his appointment of Supreme Court Justice Neil Gorsuch. But so far, other than Gorsuch, the president has made just one nomination. He tapped U.S. District Judge Amul Thapar for a seat on the 6th U.S. Circuit Court of Appeals that has been vacant since the 2013 retirement of Judge Boyce Martin, an appointee of former President Bill Clinton.

Von Spakovsky said the Trump team has been slowed by a lack of political appointees necessary to vet potential judges.

[lz_table title=”Judicial Vacancies” source=”Administrative Office of the U.S. Courts”]71 vacancies were GOP appointees. 58 were Democratic appointees.
|President,Number
Jimmy Carter,5
Ronald Reagan,16
George H.W. Bush,15
Bill Clinton,47
George W. Bush,40
Barack Obama,6
[/lz_table]

“The only thing that’s holding it up is not having enough personnel in the White House and the Justice Department to find the people they want to appoint,” he said. “It’s purely a practical consideration.”

Paul Collins, director of legal studies at the University of Massachusetts Amherst, said the pace set by Trump is slow but not unprecedented — particularly considering the time and effort devoted to getting Gorsuch confirmed. While the Supreme Court accepts less than 1 percent of the appeals presented to it, though, the district courts decide 300,000 cases a year, and the appellate courts hear another 60,000.

“It’s incredibly important,” said Collins, an expert on judicial confirmations. “We give far too much attention to the Supreme Court.”

Of the judges whose resignations, retirements and deaths have triggered current vacancies, 71 were Republican appointee and 59 were Democratic nominees. That means Trump can play defense with Republican-appointed judges whose replacements would have been liberal had Democrat Hillary Clinton won the 2016 election. At the same time, he can begin to pull the courts to the right by replacing judges appointed by Bill Clinton, Obama, and — in a small number of cases — Carter.

“The lower courts are incredibly important,” said Carrie Severino, who lobbied for Gorusch’s confirmation as chief counsel and policy director of the Judicial Crisis Network. “I think it’s something the Trump administration is well aware of … Judges are a big priority for this administration.”

Judicial vacancies have become increasingly high-stakes battles over the past three decades. What started with partisan attacks over control of the Supreme Court filtered down to lower-court positions. Senate Democrats escalated the court warfare by using the filibuster to block appellate court nominations by then-President George W. Bush in the 2000s.

With Obama as president, Republicans used parliamentary maneuvers to slow delay nominees. After they won control of the upper chamber in 2015, they slowed down the pace of confirmations even more. Twenty-two seats have been vacant since 2013, with some dating back even longer.

The longest vacancy stretches to 2005, when U.S. District Judge Malcolm Howard took senior status. Obama nominated federal prosecutor Jennifer May-Parker, but she never got a hearing because of Senate traditions that allow a home-state senator to hold up a nomination by refusing to return a “blue slip” giving approval to the Senate Judiciary Committee. Sen. Richard Burr (R-N.C.) never gave his approval, and the nomination did not go forward.

[lz_related_box id=”490928″]

With the filibuster now eliminated as a tool for blocking judicial appointments and Republicans in control of the Senate, Trump should be in a stronger position to push his nominees past the finish line, Collins said.

“It should be smoother than it was with Obama as president, particularly because there is unified government,” he said.

But Democrats are not without options to stymie Trump. Just as Burr managed to block May-Parker, Democratic senators could use the “blue slip” tradition to block nominees they oppose from their home states.

Severino said the elimination of the filibuster will grease the skids for Trump.

“That said, the Democrats have expressed unprecedented interest in obstructionism for the sake of obstructionism,” she said.