Trump Faces Long Odds In Race To Fill The Trial Courts

By Annie Pancak and Amanda James | September 10, 2019, 8:04 PM EDT

With appellate vacancies down to a handful, President Donald Trump is now turning his attention to the district courts, where he is expected to push to fill as many seats as possible before the 2020 elections.

Trump has been filling district court seats at a decent clip, but his appointment rate will likely slow during the final year of his term as the majority of the remaining vacancies lie in states with Democratic senators.

Trump had the advantage of entering office with double the number of district court vacancies that President Barack Obama had entered with and has had more nominees confirmed than his predecessor did at the same point in his first term.

But the president has been relying on a strategy that others have found tried and true: turning first to seats in politically friendly districts, before tackling vacancies in states where he's likely to face more opposition.

The blue slip policy gives home-state senators the ability to veto a nominee, and while it was abandoned by the Republican majority earlier this year for the appellate courts, the process remains in effect for appointments to the lower courts.

With that policy in place, and the bulk of vacancies in Democrat-controlled states, Trump will have a tough time filling the 61 district court vacancies needed to get a Republican-appointed majority in the trial courts before the 2020 elections — let alone fill all the vacancies, as Senate Majority Leader Mitch McConnell, R-Ky., pledged last week.

"That would really depend on a second term. It's unlikely in the next 18 months, especially if he honors the blue slip," former Southern District of New York Judge Shira Scheindlin said.

Tackling the Low-Hanging Fruit

Trump entered office with 88 judicial vacancies to fill across the 91 Article III district courts. More than 2½ years later, as of Sept. 10, he has made 99 appointments, more than Obama made at this point in his presidency with a Democratic majority in the Senate, but fewer than President George W. Bush made with either party in control of the Senate at different points.

One reason Trump's overall rate of appointment may be slightly higher than it has been at this point in some past presidencies is that almost four times as many Republican-appointed judges have taken senior status as Democratic-appointed judges during this time.

It's typical for judges to take senior status when the party that appointed them occupies the White House, but the overall rate of judges taking senior status has been slightly higher during Trump's presidency than it has been at this point in past presidencies.

For example, in the District of New Jersey, all four vacancies that have opened up since Trump took office were from Republican-appointed judges assuming senior status or retiring. In the Southern District of New York, two of the three judges who have taken senior status since Trump took office were appointed by a Republican president.

Scheindlin, in speculating about Trump's prospects for filling the bench in her former court, said current Democrat-appointed judges who might be eligible for senior status are likely playing the political waiting game and holding off till they see what happens in the next election.

"It's not always predictable that because someone is appointed by a certain president that they'll rule a certain way," Scheindlin said. "I'm hoping every judge when they're appointed puts politics aside and rules according to facts regardless of what party they were in before they took the bench."

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Presidents tend to first prioritize filling vacancies in politically favorable districts, according to Harvard University researchers Justin Pottle and Jon Rogowski, who studied vacancies and nominations in federal district courts from 1961 to 2018.

These districts have connections with advocacy groups coupled with allies in the Senate who help accelerate the White House's vetting process.

Trump's strategy is no exception: Go after the easy targets first.

After taking office, his first two district court nominees were to Oklahoma's western district and Idaho, two states Trump won in the 2016 election.

In states with two Republican senators, Trump has succeeded in filling multiple vacancies, including 10 judgeships in Texas' northern and eastern districts.

In these states, the president has a better chance of pushing through more controversial candidates because he is more likely to have the backing of home-state senators, according to experts.

For example, in Oklahoma, Judge Patrick Wyrick was confirmed to the western district by a 53-47 vote. Democrats called Wyrick too extreme after he frequently opposed the U.S. Environmental Protection Agency when he was Oklahoma's solicitor general.

Political Gridlock Ahead

But in districts where disagreement between home-state senators and Senate leaders can result in delays to the confirmation process, nominees tend to fall less in line ideologically with the White House's agenda and are less controversial.

"You can't have an extreme person on the left because the president won't appoint, and you can't have an extreme person on the right because the Democratic senator won't send in the blue slip," said Arthur Hellman, a law professor at the University of Pittsburgh.

This nuance has already played out in several districts with Democratic senators.

For example, Maryellen Noreika, who was nominated to the District of Delaware by Trump, was also praised by Delaware Sens. Chris Coons and Tom Carper, who are both Democrats.

But in New York, where there has been a partisan standoff between Sen. Chuck Schumer, D-N.Y., and Majority Leader Mitch McConnell, R-Ky., Trump renominated nine of his choices in various districts this year after their nominations from last year expired without a vote. Those nominations are still pending.

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There are still several vacancies left in districts politically aligned with Trump, but many more are in states where there are two Democratic senators or one from each party.

California tops the list by number of district court vacancies with 14 judgeships waiting to be filled, while New York comes in a close second with 13 vacancies.

The administration has already shown signs of turning its attention to tackling these districts. After an initial round of nominations in February, Trump named three more judges to California's central district in August, for a total of six. He made a second and third nomination to California's southern district the same month. This shows a turning of the tide after ignoring the districts the first two years of his presidency, despite its high number of vacancies.

As Trump continues to pivot towards filling vacancies in these districts, he's likely to "put packages together," Hellman said.

This means having to negotiate with senators from those states to find "one or two [judges] that would ordinarily be unacceptable to one side or the other packaged with some that are at least tolerable for everybody."

Such nominations are likely to take much longer than the nominations during the first half of his term because of the extensive vetting process the White House will have to conduct in addition to the negotiations with home-state senators, and the rate of appointments may slow down, as they have for most recent presidents.

That is, unless Lindsey Graham, chairman of the Senate Judiciary Committee, chooses to abandon the blue slip policy as he did for the appellate courts, which would make it easier, technically, to appoint district court judges.

Rules Changes Smooth the Way

While Trump entered office with a high number of vacancies, he has also benefited from the 2013 abolition of the filibuster, according to Kenneth Manning, a political science professor at the University of Massachusetts, Dartmouth.

Trump's path was further smoothed by a Senate vote in April shortening the number of hours of debate allowed on nominees from 30 hours to two, according to political science professor Sheldon Goldman at the University of Massachusetts, Amherst.

Trump has had 99 district court judges, or 70% of his nominees, confirmed by Sept. 10. Two of those appointees — Peter J. Phipps and A. Marvin Quattlebaum Jr. — were subsequently elevated to circuit courts, bringing the number of active district court appointees to 97. Obama, on the other hand, had 74, or 62%, of his district court nominees confirmed at the same point in his presidency.

"The rules are much more conducive now to an administration getting their judges approved as long as their party controls the Senate," Manning said.

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And yet, even though Trump has faced fewer obstacles than Obama did, during the first Congress of Trump's term there was a "surprisingly high" amount of opposition to nominees many considered controversial, Goldman noted.

He expects a big push to get nominees to the district courts confirmed by this fall, ahead of the 2020 elections.

"Trump's impact would be greater if all the vacancies were filled, and I think the impact for the district courts will be felt when this Congress is finished," Goldman said.

District courts have significant reach and power in interpreting the law. Appellate courts, which hear thousands of cases compared to the 75 to 80 the Supreme Court hears each year, have affirmed lower court decisions more than 60% of the time in the last three years, according to the Administrative Office of the U.S. Courts.

"The reality is when cases are decided by the U.S. district court, in most instances, those decisions stand," Manning said.

Annie Pancak and Amanda James are data reporters for Law360. Graphics by Chris Yates. Editing by Pamela Wilkinson, Jocelyn Allison and John Campbell.

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