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President Donald Trump may get a chance to “flip” three federal appeals courts that currently have a majority of Democratic-nominated judges.
Filling current vacancies at the U.S. Courts of Appeals for the Second, Third, and Eleventh Circuits would put Trump in striking distance of having a majority of Republican nominees on those courts.
Trump also has an opportunity to more than double the number of Republican appointees on the Ninth Circuit, which now has seven vacancies after the sudden death of Judge Stephen Reinhardt March 29.
Though that court is unlikely to flip in the foreseeable future, increasing its number of Republican-nominated judges could have significant effects, Josh Blackman, a professor at the South Texas College of Law Houston, told Bloomberg Law by telephone.
Nominating conservative judges was a major campaign promise for Trump.
He’s continued to make judges a focal point, frequently touting the number of judges confirmed in his presidency in campaign-style speeches.
Judges confirmed under Trump could have significant effects on a host of issues facing the Trump administration, including environmental controversies.
In one recent speech, Trump noted that judges decide “what’s fair on the environment and what’s not fair,” and on where “they’re going to take your farms and factories away and where they’re not.”
The federal appeals court are the highest courts to hear disputes before cases move to the U.S. Supreme Court, and splits, or differences of opinion among the circuits, is a top consideration for the high court in granting review.
Predicting courts’ behavior based on the parties of their judges’ nominating presidents is “crude” and helpful “only in a general way,” Carl W. Tobias, a professor at the University of Richmond School of Law, Richmond, Va., who focuses on judicial nominations, told Bloomberg Law by telephone.
Still, though judges aren’t “fungible” along party lines, it’s the “best metric we have in a simplified sense,” of how judges might vote, Russell R. Wheeler, a professor at American University law school, Washington, and a visiting fellow at the Brookings Institution who focuses on U.S. judicial systems, told Bloomberg Law by telephone.
Trump’s opportunities to fill vacancies could soon disappear, as Democrats have a slight chance of taking control of the Senate in midterm elections in November.
Further, Senate Republicans have “a lot of other things on their plate” before November besides judicial nominees, Wheeler said.
Three circuits are close to flipping from mostly Democratic to mostly Republican appointees.
The Third Circuit now has five judges nominated by Republicans and seven by Democrats—and two vacancies.
The Second Circuit also has two vacancies.
Filling those with Republican nominees would leave that court 7-6 in favor of the Democratic appointees.
The Eleventh Circuit has seven Democratic and five Republican appointees.
But there could soon be an even split because Judge Julie Carnes, a Democratic appointee, will take senior status in June.
Trump has a chance to fill seven current vacancies on the Ninth Circuit, which now has only six Republican nominees compared to 16 Democratic nominees.
There is also one known future vacancy—Judge Randy N. Smith, a Republican appointee, will take senior status in August.
More Republican appointees could have a major effect on the circuit, even without a majority, Blackman said.
“Internally, the presence of a dissenting voice can sometimes be used to moderate a majority opinion,” he said. “Externally, a vigorous dissent from a panel opinion, or from the denial of rehearing en banc, can help gin up attention for” U.S. Supreme Court review.
Even though Trump’s nominees to the Ninth Circuit “won’t shift the balance, they will provide a voice on that court that is currently lacking,” he said.
Trump hasn’t nominated anyone to fill the vacancies on the Second or Third Circuits, and he’s only nominated two candidates for the Ninth Circuit’s many open seats.
Time may run out if those spots aren’t filled soon because there’s a chance Democrats will have a majority in the Senate after the midterm elections, Tobias said.
That outcome is unlikely because Democrats must defend 26 of the 34 seats up in November, and 10 of those seats are in states Trump won in 2016.
But if it happens, “you’re not going to see any confirmations in the last two years of the Trump administration,” Wheeler predicted.
From the Democrats’ perspective, it would be “payback for what the Republicans did to Obama,” including their refusal to confirm Judge Merrick Garland to the U.S. Supreme Court, he said.
Despite predictions that Senate Republicans would confirm nominees at a rapid pace given the upcoming midterm elections, only two appellate candidates have been confirmed in 2018.
It’s not “the breakneck pace that I thought was coming,” Tobias said.
In contrast, 12 circuit nominees were confirmed in 2017, setting a record for a president in his first year.
Senate Majority Leader Mitch McConnell (R-Ky.) likely “hasn’t moved nominees as quickly as he could” because he doesn’t want to give up the legislative floor time needed to do so, Tobias said.
For each nominee, Senate Democrats have been requiring 30 hours of additional debate time after a cloture motion is invoked to end debate on a candidate.
That requirement also applies to confirmation of district court nominees.
Confirming the ten pending appellate nominees and 45 pending district nominees would require 1,650 hours, or more than 68 days, of post-cloture debate time.
Blackman said he’s surprised that rule “hasn’t been nuked” by Republicans.
Republicans have proposed shortening the amount of debate time required.
One proposal would limit debate to two hours for district nominees, freeing up time for Republicans to meet the 30 hour requirement for circuit nominees.
“I think there’s some traction for” that, Tobias said.
The effect of Trump’s circuit nominees will depend partly on how ideological they are.
Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) announced last year that he wouldn’t require “blue slip” approvals from both of a nominee’s home state senators in certain cases.
The blue slip tradition allows members of a nominee’s home state to delay or halt a judicial nomination by refusing or withholding a blue form indicating their endorsement.
With the blue slip requirement loosened, Trump has more freedom to choose conservative nominees, Blackman said.
But some nominees have appeared sufficiently moderate to gain support from Democratic senators.
For example, pending Ninth Circuit nominee Mark Bennett has received support from both Democratic senators in his home state of Hawaii, including Sen. Mazie Hirono.
Hirono’s approval is notable because she’s “been very vigorous on questioning nominees” while on the Senate Judiciary Committee, Tobias said.
Similarly, Seventh Circuit nominees Michael Y. Scudder Jr. and U.S. District Judge Amy St. Eve have the support of both Democratic senators from Illinois.
Those nominees are “more moderate” than some who were confirmed in 2017, Tobias said.
The Trump administration has, in some cases, found a way to work with Democratic senators “to pick someone palatable,” Blackman said.
Trump’s ability to change the face of circuits will depend partly on how many judges take senior status, especially Democratic appointees.
When judges take senior status, they enter a type of semi-retirement that allows them to continue hearing cases but also opens a vacancy on their court.
President Bill Clinton was able to change the makeup of federal appellate courts more than President George W. Bush partly because of how many Republican appointees took senior status under Clinton, Wheeler said.
About half of federal appellate judges are now eligible for senior status, Wheeler said.
But appellate judges “tend to linger” in active status on the bench more than district court judges, he said.
Sixteen federal appellate seats were held over from the Obama administration when Trump took office.
Trump has been able to fill a number of these vacancies that were long open.
Judge Don Willett filled a seat on the Fifth Circuit that had been vacant since 2012.
Sixth Circuit Judge Amul Thapar, Eleventh Circuit Judge Kevin C. Newsom, and Fifth Circuit Judge James Ho filled seats that were vacant since 2013.
Seventh Circuit Judge Amy Coney Barrett, Eighth Circuit Judge Ralph R. Erickson and Third Circuit Judge Stephanos Bibas filled vacancies that were open since 2015.
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