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Those nominations, along with the hundreds of other judicial vacancies that Trump may get the opportunity to fill, could be the most “durable” aspect of his presidency, Carrie Severino, of the conservative group Judicial Crisis Network, Washington, told Bloomberg BNA.
Trump has already made a lasting mark on the federal judiciary by placing 49-year-old Neil M. Gorsuch on the U.S. Supreme Court bench. But the overwhelming majority of Trump’s judicial appointments will be to the lower federal courts—in particular, the district courts and circuit courts of appeals.
It’s hard to overstate the importance of appointments to those lower federal courts, Christopher H. Schroeder, who supervised the recommendations for President Barack Obama’s nominees as head the Office of Legal Policy, told Bloomberg BNA. These courts are the last word in more than 99 percent of the country’s legal cases, Schroeder, now a professor at Duke Law School, Durham, N.C., said.
Though all presidents have the opportunity to influence the federal judiciary, changes to the judicial confirmation process could make Trump’s impact more dramatic, Daniel L. Goldberg, of the progressive Alliance for Justice, Washington, told Bloomberg BNA.
Those changes include the elimination of the filibuster, a possibly diminished role for the American Bar Association, and the possibility of scrapping so-called blue slips.
Every year, about 40-50 federal judgeships open up because the judge either dies or takes “senior status,” Schroeder said. Senior judges are typically long time judges that essentially volunteer to take on a significantly lower caseload during retirement.
Since President Ronald Reagan, presidents have appointed an average of 180 judges to the federal bench per term, according to figures provided by the Administrative Office of the U.S. Courts. With the current total of 890 federal judgeships, that means a two-term president can appoint anywhere between one third to one half of all federal judges.
That undeniably has a major effect on the country, even though the vast majority of those appointments won’t be to the Supreme Court, Severino said. The Supreme Court hears less than 1 percent of the cases that are brought in federal courts, she said. Lower courts do the bulk of the judiciary’s work.
Moreover, those lower court decisions can have huge national implications, Goldberg said. He pointed to federal district court decisions—one out of Hawaii, the other out of Maryland—which halted Trump’s “travel ban.” The ban, among other things, temporarily stopped immigration from six predominantly Muslim countries.
Such appointments, whether to the Supreme Court or lower courts, are more “durable” than other presidential actions, Severino said.
Judicial appointments to federal district courts and the circuit courts of appeals are lifetime appointments. They can’t be revoked as easily as an executive order or be repealed like Republicans are trying to do to President Barack Obama’s signature health care legislation, she said.
Because the presidency in modern times has tended to alternate between Republicans and Democrats, judicial appointments are likely to provide balance to the federal judiciary, Schroeder said. It prevents courts—at least lower courts—from becoming too extreme, he said.
The Supreme Court, though, is different, Schroeder said. The scarcity of Supreme Court seats—currently set by statute at nine—makes vacancies unpredictable, he said. As a result, the Supreme Court hasn’t always reflected the same kind of balance of the lower courts.
In addition to confirming two Supreme Court justices—Justices Sonia Sotomayor and Elena Kagan—Obama was able to appoint 327 individuals to the lower federal courts, according to the Administrative Office of the U.S. Courts.
In doing so, he was able to transform the judiciary to be more left-leaning, Severino said.
Now it’s Trump’s turn to possibly shift the courts to the right.
When he took office, there were 108 federal judicial vacancies for Trump to fill, Goldberg said. That number has since increased.
Changes to the confirmation process could make candidates for those vacancies more “extreme” and less likely to share mainstream values, Goldberg said.
One change that’s already occurred is the elimination of the filibuster for all judicial nominations, which essentially required 60 votes to advance a judicial nominee to a final vote.
Although the modern filibuster has been in place since 1917, according to the Senate Historical Office, it had only been used against judicial candidates starting in the last few decades, Severino said. The elimination of the filibuster just returns us to the status quo, she said.
But the filibuster acted as a “moderating force,” even when not used, Schroeder said. Given that the nominee would ultimately have to gain the approval of 60 senators, presidents would typically nominate individuals with more-or-less mainstream views.
Democrats, however, jettisoned the filibuster for lower court nominees when they controlled the Senate in 2013, Goldberg said. Republicans returned the favor earlier this year, eliminating the filibuster for Supreme Court nominees, too. Both actions occurred in response to what both parties claimed was “unprecedented obstruction” from the other side.
With the filibuster gone, presidents have less of an incentive to nominate someone that’s acceptable to the other party if the president and the Senate majority are the same party, Schroeder said.
Another change that’s already occurred is the elimination of the American Bar Association’s pre-nomination evaluation.
Since 1953, the ABA’s Standing Committee on the Federal Judiciary evaluated “the professional qualifications of prospective nominees to the lower federal courts on a pre-nomination basis,” according to its website.
Since then, only President George W. Bush eschewed the pre-nomination recommendations. The Senate Judiciary Committee, however, committed to hold off on confirmation hearings until the ABA could weigh in with its recommendation, Schroeder said.
In March, after the ABA gave Gorsuch its highest recommendation, the White House informed the ABA that it didn’t want pre-nomination evaluations from the ABA either. The administration didn’t “intend to give any professional organizations special access to” the nominees, the White House said in a March 17 letter reprinted by the New York Times.
Trump’s campaign, however, consulted with the conservative Heritage Foundation and libertarian Federalist Society to come up with a list of 21 potential Supreme Court candidates during the election. Trump vowed to—and did—pick from that list when naming Gorsuch to the bench.
Schroeder, however, said outside groups on both sides have influenced the selection process in modern times. It’s hard to measure if that influence is increasing or becoming more concentrated in particular groups, he said.
But Ranking Member of the Senate Judiciary Committee Dianne Feinstein (D-Calif.) said the ABA’s input should continue, even if the White House doesn’t want it. She’s asked Chairman Chuck Grassley (R-Iowa) to pledge to wait for ABA recommendations before holding any hearings, as was the practice under Bush, Schroeder noted. Grassley hasn’t publicly responded to that request and didn’t respond to a request for comment from Bloomberg BNA.
But during a Judicary Committee meeting June 14, Feinstein thanked Grassley for working with her “on the timing in order to ensure that we had the American Bar Association ratings for both,” judicial candidates that the committee was considering that day. It appears therefore that Grassley intends to acquiesce to Feinstein’s request.
If that’s the case, the ABA will still be involved and will still ensure that judicial candidates are at least professionally qualified, Schroeder said. It will just be later in the process, he said.
A potential change to “blue slips” could have a bigger effect on the confirmation process. These are literally slips of blue paper distributed to the two senators from the state in which the judicial vacancy arises, asking them to sign off on the nominee.
Blue slips, like the filibuster, are about comity with fellow colleagues, Schroeder said. The practice related to such slips has varied over the years, he said.
Under recent Judiciary chairs, the failure of a home-state senator’s refusal to return a favorable blue slip was fatal to the nomination, Schroeder said. Under earlier chairs, the home-state senators were given less deference.
The blue slip process, “is designed to encourage outstanding nominees and consensus between the White House and home-state senators,” Grassley said in a 2015 op-ed.
But recently Grassley has suggested that such deference is only appropriate for district court judges. Because district judges preside only within one particular state, their effect on that state is more obvious. Circuit judges, however, often preside over several states.
It’s “just not the case” that blue slips are only appropriate for district court judges, Feinstein said at the June 14 Judiciary Committee meeting. She noted that one of the circuit court vacancies that the committee was considering that day only remained unfilled under Obama because Republican senators refused to return their blue slips.
But whether the blue slip process will change depends on Democrats, Severino said. Blue slips were never intended to be a one-person veto, she said. Instead, they were intended to ensure consultation with home-state senators, she said. If Democratic senators steadfastly treat them as vetoes, though, blue slips could go away.
Grassley is a Senate veteran who can appreciate the importance of Senate norms, Schroeder said. He may pause before making another change, he said.
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