Trump’s Chance to Influence the Judiciary for Decades
President left 118 federal court vacancies to stock with a new generation of conservative jurists
Former President Obama left President Donald Trump 118 judicial vacancies in federal courtrooms, according to the federal judiciary’s official website.
That was twice as many as former President George W. Bush left Obama in 2009, according to The Washington Post.
In one fell swoop, just by taking office, Trump gets to appoint almost 13 percent of federal judges in the lower courts.
It’s a significant opportunity for Trump to leave a conservative footprint on the judicial landscape of the country. The appointments to the lower courts of the federal government are made for life.
And because the U.S. Senate is controlled by the Republicans until at least 2019, Trump has the chance to begin making his imprint upon the federal judiciary rapidly.
So while media focus remains fixated on the Supreme Court vacancy Trump wants filled with Judge Neil Gorsuch, Trump would be wise to move swiftly to make nominations to fill the lower courts, which are more influential than people assume.
In one fell swoop, Trump could appoint almost 13 percent of judges in the lower courts. Trump should start filling those seats based on how a predecessor did the job.
The Reagan Courts
Perhaps the most influential president upon the judiciary, in the last few decades, was former President Reagan. Reagan and his advisers knew the importance of having judges in place who would adhere to the principles generally espoused by Republicans: tight adherence to the Constitution, also known as strict constructionism.
It means a minimum of judicial activism, what Justice Byron White called exercises of “raw judicial power” when he objected to Roe v. Wade in 1973.
Republicans prefer judges who let lawmakers and the president make the law. They want courts to intercede when there are clear violations of rights, laws, or constitutional guidelines.
Liberals, on the other hand, want federal judges to use flexibility when interpreting the Constitution. It was that philosophy that led to the Supreme Court’s approval of abortion rights in January 1973, and gay marriage in June 2015.
No president in the last 40 years got the opportunity Reagan got. Reagan appointed three Supreme Court justices, the most since President Richard Nixon’s tenure.
According to federal records, Reagan also made another 380 appointments to federal judgeships between 1981 and 1989.
Reagan’s influence is even larger than his tenure indicates, because his vice president, George H. W. Bush, became president in 1989. Former President Bush appointed another two Supreme Court justices, and 192 federal judges.
Bush lost the 1992 election, but Republicans got a total of five Supreme Court justices and 573 judgeships out of the 12-year run.
That’s a lot of judgeships, since as of Feb. 3, there are 856 seats in the U.S. district courts and the U.S. appellate courts.
The Clinton-Obama Years
In the 24 years since 1993, save for eight years of President George W. Bush, former Presidents Bill Clinton and Barack Obama got to appoint almost 690 liberal-leaning judges since 1993.
That altered the course of the federal judiciary from the Reagan years, if not permanently.
The lower federal courts are important because they often settle disputes that will not reach the U.S. Supreme Court and they provide a farm team for candidates for the U.S. Supreme Court.
Federal cases start in U.S. district courts. If appealed, they head to the 12 circuit courts of appeals. The federal circuit court is the 13th appellate court, but it only takes certain types of cases.
At the top, the Supreme Court is asked to take 7,000 cases a year for final decision. It hears between 100 to 150, according to the federal judiciary’s website.
“That means the decisions made by the 12 Circuit Courts of Appeals across the country and the Federal Circuit Court are the last word in thousands of cases,” the website says.
Trump gets an immediate crack at changing those very important lower courts.
Meanwhile, the Trump administration is making clear it wants input from conservatives on the appointments. Most notably, Vice President Mike Pence spoke to the Federalist Society on Saturday, at Congress Hall in Philadelphia.
The Federalist Society is perhaps the most influential conservative law association in the United States.
The group claims a membership of 60,000 lawyers, law students, scholars, and other individuals “who believe and trust that individual citizens can make the best choices for themselves and society … [The Federalist Society] was founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”