Trump goal to re­shape courts gains no ground with wins

Nom­i­nees re­place other Repub­li­cans

The Washington Times Weekly - - Politics - BY ALEX SWOYER

Pres­i­dent Trump has won con­fir­ma­tion of 15 cir­cuit court judges, but he still has a long way to go in re­shap­ing the courts be­cause most of those picks have re­placed re­tir­ing Repub­li­cans rather than adding to the party’s over­all num­bers.

So far, Mr. Trump has not dra­mat­i­cally al­tered the makeup of any of the 12 cir­cuit courts of ap­peals.

But with a dozen cir­cuit court nom­i­nees pend­ing, that could soon change. In sev­eral cir­cuits, the num­ber of Democrat­ap­pointed judges is slightly higher than the num­ber of Repub­li­can-ap­pointed judges.

Mr. Trump also could make a ma­jor dent in the 9th Cir­cuit, long the coun­try’s most lib­eral fed­eral ap­peals court, where Demo­crat ap­pointees hold a 16-6 ad­van­tage among active judges. The court has eight va­can­cies for Mr. Trump to fill.

“Eight new cir­cuit judges is in­her­ently a big deal. It’s a lot of fresh blood,” said Joseph Tar­takovsky, a con­sti­tu­tional law fel­low at the Clare­mont In­sti­tute.

For Repub­li­cans, the cir­cuit courts are at the top of a crowded Se­nate agenda. Ma­jor­ity Leader Mitch McCon­nell, Ken­tucky Repub­li­can, has said he will pri­or­i­tize ju­di­cial con­fir­ma­tions even over leg­is­la­tion on the floor be­cause the judges will shape the coun­try for decades to come.

Some an­a­lysts said it shouldn’t mat­ter who ap­points judges be­cause they should rule equally no mat­ter which party is in power when they join the court. But oth­ers said the record makes clear that judges’ phi­los­o­phy seems to tack closely to the party that nom­i­nated them.

When Pres­i­dent Obama left of­fice, eight cir­cuits had a ma­jor­ity of active judges ap­pointed by Democrats, and Repub­li­can nom­i­nees were a ma­jor­ity on four cir­cuits.

Mr. Trump has padded the Repub­li­can num­bers on the 5th, 6th and 8th cir­cuit courts, which were al­ready Repub­li­can­dom­i­nated, and has closed the gap on the 11th, a ma­jor­ity Demo­cratic cir­cuit.

But be­cause of re­tire­ments, Repub­li­cans have lost ground among active judges on the 4th, 9th and 10th cir­cuits since the be­gin­ning of 2017, when Mr. Trump took of­fice.

“It is sig­nif­i­cant when the gap nar­rows,” said Curt Levey, pres­i­dent of the Com­mit­tee for Jus­tice. “The pro­por­tion mat­ters even if it doesn’t flip.”

Since the Supreme Court takes only a lim­ited num­ber of cases, the cir­cuit courts end up mak­ing bind­ing pol­icy on a num­ber of big is­sues.

Par­tic­u­larly on cases where the high court hasn’t is­sued firm prece­dent, cir­cuit court rul­ings can play ma­jor roles in defin­ing le­gal bat­tles.

Leonard Leo, an out­side ad­viser to Mr. Trump on ju­di­cial nom­i­nees, said it’s not so much the party that ap­points a judge as much as it is the ju­di­cial phi­los­o­phy that the nom­i­nee brings.

“The key ques­tion is whether the judge be­ing re­placed showed a strong com­mit­ment to the rule of law, the lim­its on gov­ern­ment power con­tained in our Con­sti­tu­tion and in­ter­pret­ing the law as it is writ­ten rather than mak­ing things up. Mea­sured by that stan­dard, the ap­point­ments the pres­i­dent is mak­ing are sig­nif­i­cant, even trans­for­ma­tive,” Mr. Leo said.

Both par­ties have fought bit­terly over the pace of cir­cuit court con­fir­ma­tions.

Democrats used the “nu­clear op­tion” to evis­cer­ate fil­i­buster rules in 2013 af­ter Repub­li­cans slow-walked Ma­jor­ity Leader Harry Reid’s ef­forts to pack the U.S. Cir­cuit Court of Ap­peals for the Dis­trict of Columbia with Obama ap­pointees.

Mr. Obama would go on to name four of the cur­rent 11 judges on that court, help­ing Democrats gain a 7-4 ad­van­tage on what many le­gal an­a­lysts con­sider to be the sec­ond most im­por­tant court in the coun­try.

When se­nior judges, who hear cases at a slower pace, are in­cluded, the D.C. cir­cuit’s balance is flipped. The five Repub­li­can ap­pointees and one Demo­cratic nom­i­nee among the se­nior judges bring the court’s tally to eight Democrats and nine Repub­li­cans be­cause of Mr. Trump’s nom­i­na­tion of Judge Gre­gory G. Kat­sas.

When se­nior judges are in­cluded, Repub­li­can ap­pointees have a ma­jor­ity on eight cir­cuits, Democrats hold a ma­jor­ity on three and one cir­cuit is evenly split, ac­cord­ing to a tally by The Wash­ing­ton Times.

Caseloads are lighter for se­nior judges, and they typ­i­cally don’t join en banc rul­ings, which is when the full court re­con­sid­ers a case.

But they can take part in three-judge pan­els, and the ide­o­log­i­cal makeup of those pan­els can im­pact the lit­i­gants, said Michael Ger­hardt, a law pro­fes­sor at the Univer­sity of North Carolina.

He said the Trump ad­min­is­tra­tion has viewed the courts as too ac­tivist, and the pres­i­dent’s ad­vis­ers have given much thought to the types of ju­rists he should nom­i­nate.

“I think the ob­jec­tive for the ad­min­is­tra­tion will be even­tu­ally to tip all of the courts of ap­peals in fa­vor of GOP ap­point­ments,” Mr. Ger­hardt said.

Charles Fried, a law pro­fes­sor at Har­vard Univer­sity, is dis­ap­pointed that ju­di­cial nom­i­nees are cho­sen th­ese days on more ide­o­log­i­cal and po­lit­i­cal grounds.

“In the end, we might as well elect our judges and have done with it,” he said.

Al­though bat­tles over cir­cuit court nom­i­na­tions have in­ten­si­fied in re­cent years, they are noth­ing new.

One of the most pointed de­bates was when Pres­i­dent Ge­orge W. Bush tried to fill a va­cancy on the 6th U.S. Cir­cuit Court of Ap­peals while that court was tak­ing up con­tentious af­fir­ma­tive ac­tion poli­cies at the Univer­sity of Michi­gan.

Ac­cord­ing to a memo from Demo­cratic staff on the Se­nate Ju­di­ciary Com­mit­tee, Democrats were slow-walk­ing Mr. Bush’s pick, fear­ing an­other Repub­li­can ap­pointee on the bench could swing the case against Democrats’ po­si­tion.

“The think­ing is that the cur­rent 6th Cir­cuit will sus­tain the af­fir­ma­tive ac­tion pro­gram, but if a new judge with con­ser­va­tive views is con­firmed be­fore the case is de­cided, that new judge will be able, un­der 6th Cir­cuit rules, to re­view the case and vote on it,” staffers wrote in an April 17, 2002, memo to then-Sen. Ed­ward M. Kennedy, ad­vis­ing him to slow the con­fir­ma­tion process for Ten­nessee Judge Ju­lia S. Gib­bons.

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