Trump’s judicial appointment impact now poised to move swiftly

Despite substantial missteps and self-inflicted political wounds on any number of fronts, President Donald Trump’s administration has been impressive in moving quickly to fill the U.S. Supreme Court vacancy created by the death of the late Presiding Justice Antonin Scalia.

Although it took the exercise of the socalled “nuclear option” on the part of the Republican majority in the U.S. Senate, Trump was remarkably successful in getting his nominee Neil Gorsuch confirmed and sworn as Scalia’s successor. Clearly, the Gorsuch nomination was the hallmark of Trump’s first 100 days in office.

While Trump could well fill another four seats given the ages of Justices Ruth Bader Gindsberg (84), Anthony Kennedy (80), and Stephen Breyer (78), it is in the lower federal courts where the new president is expected to make a more immediate impact.

In recent weeks, I outlined that longtime 5th U.S. Circuit Court of Appeals Judge E. Grady Jolly had notified President Trump of his intent to take senior status on the federal bench on Jolly’s 80th birthday in October — giving Trump his first judicial appointment in Mississippi.

Jolly has served a 35-year federal judicial career since succeeding the late Judge J.P. Coleman on the 5th Circuit bench in 1982. Jolly’s decision to step down sets in motion the same sort of judicial patronage process that was in place in 1981 when Jolly was first approached about the judgeship by U.S. Sen. Thad Cochran after Coleman announced his retirement decision on Jan. 29, 1981.

The law doesn’t necessarily guarantee that a Mississippian will be nominated to succeed Jolly. The law regulating the federal circuit courts – the Judicial Improvements Act of 1990 – states the number of seats authorized to each of the 13 circuits (including the D.C. Circuit and the Federal Circuit).

But it’s rare in the extreme to see seats on the federal district courts “move” from one state to another simply because of the political unrest such actions generate for the nominating presidents and the bare-knuckle Senate fights such attempts engender. It just rarely happens –and when one of the senators in question is chairman of the Senate Appropriations Committee, the chance for surprises become even rarer.

Mississippians Grady Jolly, Rhesa Barksdale, Leslie Southwick, and James Graves currently hold seats on the 5th Circuit. The New Orleans-based 5th U.S. Circuit Court of Appeals is comprised of Louisiana, Mississippi and Texas. Not only is Jolly’s Mississippi seat coming vacant, but there are also two 5th Circuit Court of Appeals vacancies in Texas and one in Louisiana.

The “old” 5th Circuit once also included Alabama, Florida and Georgia and was split in the 1980s into two circuits, the “new” 5th and the 11th Circuit. The “old” 5th Circuit in the civil rights era was considered an extremely liberal court, but the current “new” 5th Circuit is one of the nation’s most conservative federal circuit courts.

The Texas judicial nomination fight will pit Republican Texas U.S. Sens. Ted Cruz and John Cornyn in battle over senatorial influence with both of them holding seats on the Senate Judiciary Committee. The Louisiana vacancy will certainly draw the attention of Republican Louisiana U.S. Sen. John Kennedy as he also holds a seat on the Senate Judiciary Committee.

The Constitution gives the U.S. Senate “advice and consent” over the judicial nominations of the president. But there is also the procedural custom of senatorial courtesy, whereby senators from the sitting president’s party strongly recommend a nomination or kill it by objecting to it. While not constitutionally mandated, that custom is usually enforced by the senators through their absolute control of the confirmation process.

To be sure, Cruz, Cornyn, Cochran, and Kennedy are all counting on that “advice and consent” custom being honored by the Trump administration – and that applied to the lower federal courts as well.