How Trump Changed the Courts in 2017

COMMENTARY Courts

How Trump Changed the Courts in 2017

Dec 27th, 2017 7 min read
COMMENTARY BY
John Malcolm

Vice President, Institute for Constitutional Government

John is Vice President for the Institute for Constitutional Government and Director of the Meese Center for Legal & Judicial Studies.
We can see how his presidency is already having an effect on the courts. Chris Kleponis/dpa/picture-alliance/Newscom

Even before he was president, Donald Trump was clear about how he would prioritize putting constitutionalists on the courts.

And now, at the end of 2017, we can see how his presidency is already having an effect on the courts.

On May 17, 2016, then-candidate Trump did something unprecedented. He released a list of 11 judges as potential replacements for Justice Antonin Scalia, who had died earlier in the year.

On that occasion, Trump stated:

Justice Scalia was a remarkable person and a brilliant Supreme Court justice. His career was defined by his reverence for the Constitution and his legacy of protecting Americans’ most cherished freedoms. He was a Justice who did not believe in legislating from the bench and he is a person whom I held in the highest regard and will always greatly respect his intelligence and conviction to uphold the Constitution of our country.

The following list of potential Supreme Court justices is representative of the kind of constitutional principles I value and, as president, I plan to use this list as a guide to nominate our next United States Supreme Court justices.

Trump graciously credited The Heritage Foundation and the Federalist Society with providing names that informed his thinking on the matter.

In September 2016, Trump added 10 names to that list—including Neil Gorsuch, who was subsequently nominated and confirmed to the Supreme Court after Trump became president. Recently, now-President Trump updated that list by adding five new names.

The list was instrumental to Trump winning the election. It helped assuage the concerns of many conservatives and independents who were skeptical about Trump, but who cared a lot about the direction of the Supreme Court and the law and who did not want Hillary Clinton nominating the next Supreme Court justice.

The well-crafted list persuaded a lot of wavering voters that, at least with respect to the courts, they could trust Trump to nominate judges in the mold of Scalia and Clarence Thomas, that is to say originalists and textualists.  Moreover, the Trump administration made clear that it would prioritize nominating highly-qualified men and women to fill life-tenured positions on the federal bench.

So how has the president done in his first year in office in terms of making good on that promise? Quite well indeed.

While the crowning achievement of the year was clearly the confirmation of Gorsuch to the Supreme Court, it is worth celebrating the fact that the Senate confirmed 12 circuit court judges this year—the largest number of  appellate judges confirmed during the first year of any president in history (beating out John Kennedy and Richard Nixon by one).

While the Supreme Court only hears about 70 cases per year, the federal appellate courts consider roughly 50,000 cases per year.  In a very real way, therefore, the buck often stops at the lower appellate courts when it comes to deciding important legal issues.

The White House made filling these crucial appellate vacancies a priority, and that strategy has paid off in spades.  The intellect and overall caliber of each of the confirmed appellate judges—Stephanos Bibas (3rd Circuit), Jim Ho (5th Circuit), Don Willett (5th Circuit), Amul Thapar (6th Circuit), John Bush (6th Circuit), Joan Larsen (6th Circuit), Amy Coney Barrett (7th Circuit), Steve Grasz (8th Circuit), Ralph Erickson (8th Circuit), Allison Eid(10th Circuit), Kevin Newsome (11th Circuit), Greg Katsas (D.C. Circuit)—has been exemplary.  In short order, I expect them to become intellectual leaders on the courts where they serve.

The full Senate will soon consider David Stras for another vacancy on the 8th Circuit and Kyle Duncan for a vacancy on the 5th Circuit, and last week, the Senate Judiciary Committee held a hearing for Lisa Branch for a vacancy on the 11th Circuit. All are outstanding nominees who are likely to be confirmed.

Of course it’s not been all sunshine and roses. There have been some hiccups along the way, most prominently with the recent, highly-publicizedwithdrawal of three federal district court nominees.

Moreover, while Trump has now set the record for circuit court confirmations during a president’s first year in office, with only 19 total judges confirmed during his first year, he lags far behind other presidents—including George W. Bush (28), Bill Clinton (28, including Ruth Bader Ginsburg), Ronald Reagan (41, including Sandra Day O’Connor), Jimmy Carter (31), and Nixon (25)—in terms of the total number of judges confirmed.

And it’s not difficult to figure out why.

Having lost the ability to filibuster judicial nominees—when then-Majority Leader Harry Reid exercised the “nuclear option” in November 2013 in order to pack the influential D.C. Circuit Court of Appeals with three Obama nominees—the Democrats attempted to use the blue slip process as a one-senator veto of judicial nominees, until Sen. Chuck Grassley, R-Iowa, effectively put an end to that abusive practice, at least with  appellate nominees.

As they have with many of the president’s executive branch nominees, the Democrats have gummed up the process for judicial nominees by forcing the Republican majority to take cloture votes on 18 of the 19 judges who were confirmed this year. By comparison, the Senate was forced to take a cloture vote on only one of President Barack Obama’s nominees during his first year in office, and no closure votes were required during the first year of any other president dating back to Nixon.

Each of these cloture votes—including for judicial nominees who are completely noncontroversial—causes unnecessary delays (up to 30 hours after cloture is invoked) on the floor of the Senate before a nominee receives a vote. The Senate is currently considering several proposals to address this issue going forward.

With 167 current and future vacancies that have already been announced, with 50 nominees pending to fill those vacancies (including 10 who were announced Wednesday), there is clearly more work to do.

Nonetheless, it is worth taking a moment to offer congratulations and kudos to Trump, White House counsel Don McGahn, Senate Majority Leader Mitch McConnell, and Senate Judiciary Committee Chairman Chuck Grassley for a job spectacularly well done.

This piece originally appeared in The Daily Signal