By Ed Beeson
March 16, 2018
The crowd at the Federalist Society event couldn’t have been more thrilled. It was November, and one of the Trump administration’s top lawyers was on stage, talking up the ongoing efforts to reshape the judiciary and tilt it to the right.
Cheers followed when Don McGahn, the White House counsel, said President Donald Trump was committed to appointing judges in the mold of the late Supreme Court Justice Antonin Scalia. Raucous laughter rang out after he told a tale from the campaign trail that involved putting together a list of judicial nominees who were “too hot for prime time … the kind of people that make some people nervous” — an apparent dig at the administration’s liberal critics.
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“That is who we are going to put before the U.S. Senate,” McGahn said to a chorus of approval.
Boos and hisses erupted, too, at the mention of the American Bar Association, which conservatives have pilloried as biased when rating judges. And polite applause echoed McGahn’s solemn praise for Senate Majority Leader Mitch McConnell, who he said had “the courage” to keep dozens of judgeships open during President Barack Obama’s last two years in office and leave them for a successor to fill.
“The majority leader is really the one that has created this opportunity,” McGahn said. “And we all owe him a debt of gratitude.”
The 45-minute lecture likely left Federalist Society members jazzed for what the Trump administration is starting to accomplish — bringing on a new generation of judges who follow the conservative maxim that the Constitution should be interpreted from the plain meaning of its words and the original intent of its scribes. And chances are they like what they’ve seen so far: a new U.S. Supreme Court justice in Neil Gorsuch and 14 circuit court judges, including a record-breaking 12 appointed during Trump’s first year.
But left unspoken by McGahn were the real challenges the administration faces as it tries to put its stamp on the courts. For while much has been said about Trump’s historic opportunity to reshape the judiciary — with nearly 150 judicial vacancies at his fingertips and powerful allies in the Senate to confirm his nominees — less has been noted about the difficult road map required to meet that goal.
Simply put, if one of the goals of the administration is to return the circuit courts to the profoundly conservative state they were in after the presidencies of Ronald Reagan and George H.W. Bush, it will need a lot more time, dozens of Democratic-appointed judges to step aside and, perhaps most immediately, a dose of luck headed into this year’s midterm elections.
A Bullish Agenda
This uncertainty keeps the future hazy for the administration. But White House supporters remain bullish on what can be accomplished.
“I think President Trump has the opportunity to transform the federal bench and appoint perhaps up to 40 percent of the bench,” said Leonard Leo, an outside adviser to Trump on judicial selection.
He pointed to the president’s first year in office, when Trump appointed Justice Gorsuch plus 22 other judges to the lower courts.
“What happened last year was transformative. That’s why liberal Democrats in the Senate are so concerned about it,” he said. “They understand that when you’re giving another lease on a philosophy for another 30 to 40 years … that’s highly consequential.”
Leo is also the executive vice president of the Federalist Society, a conservative legal organization that’s seen as playing a major role in validating and influencing Trump’s picks for the bench. He took a leave of absence during Justice Gorsuch’s confirmation process, but is now back full-time with the group.
He anticipates that the White House will be able to fill 20 to 25 circuit court vacancies this year before midterm elections — or about twice as many as Trump filled last year.
Accomplishing Leo’s prediction would take a lot of momentum. To start, it would mean filling the 17 circuit court seats that are currently open. It would also require replacing at least a few of the eight circuit judges who’ve announced plans to take senior status or simply retire.
This aggressive timetable is made even more so by the fact that Trump still needs to name candidates for 10 of the current vacancies and five of the pending vacancies.
He’ll also need the Senate to confirm his picks, an action that could prove difficult during an election year in which he faces an opposition party ready to defeat, or at least make political hay out of, whomever the White House sends up for a lifetime judgeship.
It took the Senate about four months on average to confirm Trump’s judicial appointees during his first year in office, according to a Law360 analysis of judicial data.
This year, it could take longer and be a more delicate process. With Sen. John McCain of Arizona absent from Washington as he battles brain cancer and Sen. Thad Cochran of Mississippi stepping down in the coming weeks, McConnell can’t afford a single Republican vote going against a judicial nominee if Senate Democrats choose to vote as a bloc against him or her.
It’s that type of math that makes some judicial watchers skeptical the White House will be able to blast past its own high-water mark of last year.
“I don’t think he’s going to get another 12 confirmations in 2018,” said Russell Wheeler, a visiting fellow at The Brookings Institution and former deputy director of the Federal Judicial Center, a government research agency.
“Even though the Democrats can’t filibuster, they can throw monkey wrenches into the works,” he continued. “And also there’s plenty else going on, as I needn’t tell you. I don’t know how much attention these confirmations are going to get.”
Luck of the Draw
When Obama came into office, he faced a judicial landscape that was, in a sense, bleaker to his party than the one Trump faced on his first day in office.
Democratic appointees held the majority on just one circuit court, the Ninth, compared with the 10 others where Republican appointees were in control. The parties were split on the Second and Third circuits, owing to vacancies.
But then something big happened over the course of his eight years in office. Obama managed to flip eight of the federal appeals courts to Democratic-appointed majorities — a swing in control neither President Bill Clinton nor President George W. Bush was able to match.
Clinton arrived in office facing Republican-appointed majorities in every circuit court. He was able to turn two of the courts solidly blue, and a third one slightly so. Bush, for his part, tilted one of those courts back to a Republican-appointed majority and otherwise strengthened Republican control where he could.
Why was Obama’s experience different? It just so happened that a swath of Republican-appointed judges across the country decided to step down from active duty, Wheeler noted.
“That’s just the luck of the draw,” he said.
Could Trump have the same fortune as Obama? Only time, and vacancies, will tell. So far, Trump has yet to crack his predecessor’s judicial blue wall. Most of his circuit court appointments have simply filled seats previously held by other Republican appointees.
While Trump successfully named 12 such judges during his first year, he only eked out a net gain of two Republican-appointed circuit judges compared with the day he took office, Wheeler noted. That’s largely because of the fact that Republican appointees — including Justice Gorsuch, who departed from his Tenth Circuit seat after Trump named him to the U.S. Supreme Court — left more of the vacancies than Democratic picks.
Trump’s appointments also largely have been concentrated on courts that were solidly conservative in the first place. So far, the administration has focused on filling vacancies on the Fifth, Sixth, Seventh and Eighth circuits, the four courts where Republican appointees held a majority when Trump took office.
While that effort reinforces the Republican appointees’ dominance of these courts for decades to come, it doesn’t necessarily broaden the reach of their jurisprudence.
There are vacancies on courts where Democratic-appointed majorities hold sway, and Trump will presumably move to fill them. But as it stands, even if he were to fill every open seat, the judicial map would look largely the same as it does now: deeply red in the center, different shades of blue most everywhere else.
For Leo, the Trump adviser, such maps miss the broader implications of the White House’s judicial strategy.
“This is not just a game of Democrat versus Republican appointees,” he said.
“This is about ideology and philosophy. This is about a brand of judge that has deep commitments to originalism, textualism, who is naturally skeptical of the administrative state because of structural limits on government power imposed by the Constitution.”
Which Courts Could Flip Next
Asked where he expects to see the next wave of vacancies, Leo rattled off a list: the Second, Third, Fourth and Ninth circuits, and possibly the D.C. Circuit.
“It’s spread across all the circuits,” he said.
His projection comes from the fact that many judges are or soon will be eligible for senior status, a form of semi-retirement that frees up their seat for a new appointment. Just under six dozen circuit judges, for example, could go senior this year if they choose, according to a Law360 analysis of federal court data.
Around half of them are Democratic appointees. Even more judges will become eligible by the time Trump’s first term wraps up.
There’s no perfect way of predicting when a judge will take senior status. Some judges choose to remain on active duty well into their 80s and 90s.
But many others opt to take a reduced docket as soon as they can. The median age at which current sitting judges took senior status was 67, according to a Law360 analysis of judicial data.
If that tendency holds into the future, then the Trump administration would see a number of openings on the circuit courts in the coming years.
Across the appellate court map, the Third Circuit may be the closest one to tilt rightward.
The Philadelphia federal appeals court currently has a 7-5 split between Democratic and Republican appointees along with two vacancies.
To flip the court to a Republican-appointed majority, Trump would have to successfully appoint two judges and wait for one of the Democratic appointees to step aside. Or he would have to appoint one judge and wait for two Democratic appointees to take senior status.
Two Democratic appointees, both named to the bench by Clinton, are presently eligible to take senior status. Another judge, an Obama appointee, will become eligible for senior status later this year. The White House, however, has yet to nominate anyone for the open slots.
One court where Trump is already having a significant impact is the Seventh Circuit.
While Republican appointees have long held dominance there, the Chicago federal appeals court has been ideologically split, in large part because Judge Richard Posner, a Reagan appointee, often sided with the liberals on the bench, noted Arthur Hellman, a law professor at the University of Pittsburgh.
But with Posner’s sudden retirement last fall, the White House’s move to fill his seat and other vacancies is likely to instill a more conservative ethos on the bench, he said.
Some Cold Water
There are various other scenarios that would allow Republicans to wrest more control of the nation’s appellate courts. But it’s also important to consider other developments that could seize the judicial agenda from the GOP.
Among other things, Republicans currently hold 51 seats in the Senate, but there’s a chance that lead could slip away in the midterm elections. While several Democratic senators are facing tough reelection bids in states that voted for Trump in 2016, pollsters see a few Republican seats as in-play now, especially if Trump and Congress’ unpopularity translates into action at the polls. A change in Senate control likely would carry sharp consequences for the White House’s judicial project.
Does the Trump administration have former Senate Majority Leader Harry Reid to thank for some of its judicial success?
In November 2013, the Nevada Democrat triggered what’s known as the nuclear option when he changed the rules for confirming lower court judges, requiring just a simple majority, after facing blockades from the Senate Republicans who were then in the minority. Democrats capitalized on the change, confirming just over a dozen judges before Republicans took over the chamber in January 2015.
Now Republicans have the button, and they’ve used it to their advantage. Nine of Trump’s 14 circuit court judges have been confirmed by fewer than the 60 votes it typically takes to override a filibuster, according to federal judicial data.
While there is no way of knowing how the vote tallies would have looked had the nuclear option not been triggered, it’s likely that some of Trump’s more controversial nominees would not have survived the gantlet without it, experts said.
And of course, fallout from the nuclear option gave Senate Majority Leader Mitch McConnell political cover to apply it to Supreme Court nominees as well, after Democrats balked at the nomination of then-Tenth Circuit Judge Neil Gorsuch.
Now that nuclear is the law of the land, “it will make it more easy to promote people with more extreme views,” notes Ilya Somin, a law professor at George Mason University.
“A lot of Democrats now regret that [Reid] did that.”
“If the Democrats take the Senate,” said Wheeler of the Brookings Institution, “I think confirmations may just well stop, as payback for what Republicans did in Obama’s final two years.”
Leo, the outside Trump adviser, acknowledged that a reversal in the Senate would make it harder to get the White House’s picks for circuit judges in place.
“Confirmations will be more delicate, harder to come by, more challenging,” he said.
“But that’s one of the reasons why this Senate midterm election is so important,” he added. “The judicial project is a very important one for the president and it’s got real consequences for the country.”
Another complicating factor for Trump is the question of which judges will step down and where. In some instances, the administration may not get the vacancies it would need to flip a court’s majority from Democratic- to Republican-appointed. That could have a huge impact on broader policy interests of the GOP.
“Where they are, and where they are not, is what will determine how much he can reshape the courts,” said Hellman of the University of Pittsburgh.
Take the D.C. Circuit, for example. The Washington federal appeals court, which presently has seven Democratic and four Republican appointees, decides many of the challenges to the administrative powers of the federal government, and appointing a majority of the judges on the bench would be a huge victory for the Trump administration and its backers in the conservative legal movement.
Among other things, it would likely help the administration avoid a repeat of rulings like the en banc one the court issued in January over the Consumer Financial Protection Bureau, a regulator probably best known for the partisan rancor it inspires.
Six Democratic appointees joined by a Republican appointee voted to find the directorship of the regulator constitutional. A trio of Republican-appointed judges said they would have found otherwise.
Four of the judges in the majority, it just so happened, were appointed by Obama. While not surprising, it’s notable that one piece of Obama’s legacy — his judicial appointees — helped to save, at least for now, the structure of another — the CFPB.
Right now, three Clinton appointees on the D.C. Circuit are eligible for senior status. They include Chief Judge Merrick Garland, whom Obama nominated to the Supreme Court in 2016 after Justice Scalia died. But there’s almost no chance, at least in the short term, that the majority of them will take it, according to Hellman.
What Is Senior Status?
Senior status is a form of semi-retirement that judges can take after they’ve reached the age of 65. To qualify, they need to meet the so-called rule of 80, which states that their age and years of service on the federal bench must equal 80 or more when combined. In other words, a judge who is 65 must have 15 years of service before he or she can take senior status, while a judge who is 68 must have 12 years of service before going senior.
Senior status allows judges to take a reduced workload and have a bit more say over what cases they hear while retaining the same pay and benefits as an active-duty judge. While there is no rule of thumb on when judges take this status, a Law360 analysis found that the median age at which a judge goes senior is 67.
“You need two of the three Clinton appointees to retire to enable Trump to change the alignment of the D.C. Circuit,” he said. “That is not going to happen, certainly from any voluntary action by these judges.”
Then, there is the question of who among the Reagan- and Bush-era judges will take senior status next. Josh Blackman, a professor at the South Texas College of Law, wrote a December column for the conservative National Review encouraging the 100 or so Republican appointees who are currently eligible for senior status to go ahead and take it.
He argued that it is better for them to do so now, so as to give the Trump administration a chance to fill their seats, rather than risk the possibility that Democrats take control of the Senate after midterms and effectively blockade any nominees from getting through.
But if judges listen to that advice, it wouldn’t help expand the number of seats that Republican appointees currently hold.
Ultimately, the question of restructuring the judicial map comes down to a question of how much time the Trump administration gets to work on the project, noted Kenneth Manning, a professor of the University of Massachusetts, Dartmouth.
“If he appoints a few dozen more, gets re-elected, and after eight years, you step back and he’s appointed a third of the federal appellate bench, that obviously would have a significant effect,” Manning said.
“But these are lots of ifs, ands or buts, and that’s a lot of speculation into the future.”
Ed Beeson is a feature reporter for Law360 who recently wrote a data-driven review of Trump’s first year. Follow him on Twitter. Additional reporting and data analysis by Jackie Bell and Cristina Violante. Editing by Jocelyn Allison, Jeremy Barker and Aaron Pelc.