In the New York Post: “Trump is chipping away at Obama’s remade federal courts”

Are the federal courts really becoming a lost cause for liberal Democrats? My new piece for the New York Post, complete with detailed map, examines claims that Trump administration nominations are transforming the lower federal courts, with results that, as the cliche goes, will last for generations. But “the nature of the courts in our system is not that one side wins any permanent victories on judicial selection. And that’s a good thing.” Over the eight years of the Obama presidency, of the 13 federal appeals courts, the number with a majority of Republican appointees fell from 10 to 4; even though Trump has had a higher number than usual of holdover vacancies to fill, that number for the moment remains 4.

19 Comments

  • “The nature of the courts in our system is not that one side wins any permanent victories on judicial selection. And that’s a good thing. Republicans shouldn’t get their hopes up too high: Even if Trump manages to place far more judges on the bench than other presidents, the idea that court rulings will be solidly conservative for “generations to come” is far from guaranteed.”

    I guess that from a 30,000 view, it’s good that “both sides” get to appoint judges. However, it can never ever ever be forgotten that judges decide actual cases. And quite simply, there are a lot of bad judges–and the bulk of the problem judges were appointed by Democrats.

    • SPO,

      That seems pretty subjective. Everyone is entitled to their opinion. I have not done a survey of all the decisions by all the federal judges, so I have not formulated an opinion.

  • The summary of the Eleventh Circuit fails to take into account the role of the blue slip n shaping the court. Presidents Clinton and Obama each appointed a Republican sponsored conservative judge alongside a judge of his choosing as the price for the return of a blue slip, Obama appointed Julie Carnes as the price for securing return of a blue slip for Jill Pryor. Clinton appointed Frank Hull, now a senior judge, and Stanley Marcus under a similar arrangement. Properly understood, the Eleventh Circuit has become quite conservative. The blue slip practice also accounts for the outlier makeup of the Fifth Circuit, by far the most conservative of circuits; democratic presidents had no power to remake the court without blue slips from republican senators even when democrats controlled the senate.

    It bears noting that under democratic control, the Senate Judiciary committee last chaired by Senator Leahy enforced the blue slip tradition that gave home state Senators absolute power to block a nominee for a court of appeals or district court seat. By contrast, Senator Grassley, the chair under Republican leadership, has abandoned the blue slip practice for court of appeals appointments, enabling President Trump to nominate and secure confirmation of judges who more clearly align with his philosophy despite the refusal of home state Senators to return blue slips.

    I leave to others the question of whether the elimination of the blue slip requirement, a norm long enforced but never reduced to a Senate rule, is a positive or negative development, but it would be a mistake to underestimate its past importance in shaping the current makeup of the courts of appeal.

    • I see that Jill Pryor was among those learned judges who voted for a stay due to the state not revealing the manufacturer of the drug. Of course, the drug tested as pure, which means, of course, that the identity of the company making it was completely irrelevant.

      As for the judicial wars, the Democrats started it by stiffing Reagan judges, ratcheting up the stiffing against Bush 41, then Clinton nominated a bunch of terrible jurists (McLane Wardlaw, Ronnie White, Frederica Massiah-Jackson, Judge Clay, Rosemary “Social Justice Killing” Barkett to name but a few), the the Dems stiffed Bush 43–and then Reid nuked the filibuster to pack the DC Circuit.

      The GOP appears to be winning—but the Dems started this.

      • SPO,

        John Adams and John Marshall “started it.”

        Regards.

        • Carter had judges confirmed after he lost an election. Then the Dems started stiffing Reagan.

          • I don’t disagree that the appointment process is problematic. I think, however, that it has been so since Washington’s tenure ended. There were some less volatile times, but they were the result of one party control of the Senate and Presidency. When that has not been the case (or when there is not a filibuster-proof majority), the appointment process has been problematic.

            IMHO, the current problem started when presidents started appointing people on the fringes when they did not control the Senate. That would be Reagan.. Hence, people like Bork get fried. Then Obama could not get a single judge through, even the non-controversial ones.

            Please note that the Senate was under Democrat control for the majority of the time between 1933 to 1981 (after the New Deal, so the Democrats were generally the more liberal economic party) . But many of those Democrats were from the south, so it was impossible to appoint and get affirmed truly liberal judges. And because of the party issues, it was impossible to get truly conservative judges affirmed. Thus, for 50 years, only moderates could be confirmed. It was not until 1981 that a president dared to nominate a right-wing zealot to the bench.

            My point is not that the modern Democrats or Republicans do not bear some responsibility. My point is that 1980 was a turning point in the disposition of the Senate. And that, more than anything else, had an impact on judicial appointments. I might even go so far as to blame it on Nixon. Had he not been a crook, Reagan might not have had the influence he did (for example, sinking Ford’s chances in 1976), and everything would be different. But, then again, maybe we should blame LBJ, whose screwing up the Vietnam War led to Nixon’s ascension. One could also blame CJ Burger who wrote and the 6 other justices who joined the opinion in Roe v. Wade.

            That said, before you blame one party or another, I would think you would have to look into history to see whether the judiciary was as politicized as it is now. See https://ilr.law.uiowa.edu/print/volume-100-issue-2/the-politics-of-early-justice-federal-judicial-selection-17891861/.

          • First of all, Bork was not “on the fringes”–compare his record to say, Judge Kim McLane Wardlaw, who has eaten four per curiam reversals by opinion from cases in which she authored the lower court opinion. Judge Clay–look at his opinions in Bobby v. Bies.

            But I really wasn’t focused on Bork. You’ll note that I haven’t mentioned him at all until now. Dems started stiffing Reagan lower court nominees. The GOP never did that to Carter. And if you look at how Breyer and Ginsburg were treated (Ginsburg had some pretty radical writings), there’s clearly more deference on the part of the GOP.

            And weren’t Warren, Brennan and Marshall true liberals?

          • If I am not wrong, Warren and Brennan appointed by….Eisenhower. Marshall was appointed by a Democrat, but the southern conservatives had lost their edge by then. I am not sure he was a true liberal, but I will give that one to you. He certainly was more liberal than, say, Thomas.

            How exactly would the GOP have done to Carter what the Dems did to Reagan? They were in the minority (I am not sure if they even had enough to filibuster). Moreover, is there any empirical evidence that Carter tried to appoint fringe candidates and that Reagan was more centrist? Finally, whether Bork was on the fringes is a matter of debate. Please note that, other than Bork, Reagan did get a bunch of justices confirmed, promoting Renquist and appointing Thomas, O’Connor, and Scalia.

            Again, my point is not to argue about whether the Democrats or the Republicans are worse. It is to argue that what is happening is nothing new and that, unless there is a big majority of the president’s party in the Senate, or the president makes centrist appointments, there have always been tensions about advice and consent.

          • Carter appointed Stephen Reinhardt to the Ninth Circuit–and quite a few others–suffice it to say, the idea that Reagan’s appointments were out of line is weak. Compare and contrast Bork and Ginsburg. Bork was certainly not to the right of Scalia. And, unlike Sonia Sotomayor, Bork never linked the quality of judging to ethnicity.

            With respect to Marshall, Brennan and Warren, their appointments blow your thesis out of the water, and the idea that Marshall wasn’t a liberal is, um, curious.

            Thomas, by the way, was appointed by Bush 41. Reagan got O’Connor, Kennedy and Scalia—two moderates and a conservative.

            I wasn’t going to bring this up, but since you insist on talking about Bork as an extremist, let’s get acquainted with RBG’s views on partial birth abortion. She thinks that procedure is protected by the Constitution–certainly radical. Her views support the deliberate killing of healthy, viable fetuses with no discernible medical benefit to the mother (unless you want to count “not being a mother as a medical benefit). So, under Ginsburg’s view, a state is powerless to prevent an abortionist from injecting a healthy 8 month fetus with Digoxin to kill it before delivery—that is extreme.

          • SPO,

            We are going way off topic. I would be glad to argue about the relative extremism of Bork or Ginsburg and whether supporting a woman’s right to choose to have an abortion is an extreme position. While I willing to argue with you about the soundness of Roe v. Wade, it would likely lead to naught, as we probably agree on the issue. Perhaps there will be another opportunity to discuss this.

            Your original point was “the Democrats started it”. My response is “that is not the case.” I do not think you have made a persuasive case.

          • Couple things to end this:

            (1) You really should acknowledge some of the historical errors in your posts—I get it that it’s hard to have perfect recall of things when dashing off a comment on a blog, but accuracy is important.

            (2) It’s a weak debating tactic to declare yourself unconvinced. The wholesale stiffing of judges started with Dems and Reagan and continued with Bush 41. The GOP responded by stiffing some Clinton appointees, although it is very relevant that a lot of Clinton nominees were terrible. See, e.g., Kim McLane Wardlaw, someone who has eaten four, count ’em four, summary reversals with per curiam opinions. And she is not an isolated case. And the GOP left fewer Clinton nominees hanging than the Dems did to Bush 41.

            (3) Then we get to Bush 43, ’nuff said. And, just to note, remember the big brouhaha over Ronnie White and the Ashcroft nomination and how the Dems mercilessly demagogued the issue–without, of course, mentioning that White failed the bar the first time around (a bar with a 90% passage rate). By the way, he’s a federal judge now, due to an Obama appointment.

            So yeah, Dems started it, and escalated it—you can deem yourself unconvinced all you want. But the record seems pretty clear,

  • Conservative==reads the law as meaning what it says
    liberal==reads the law as meaning what they think it should mean
    Am I wrong in general? And if not, why would you want someone who does not interpret the constitution as it is written?

    • In part because exactly what is being said is sometimes ambiguous, way out of date, or being used in ways unintended. Examples; Commerce clause (unintended usage), right to privacy (never directly expressed), and the 2nd amendment (which many argue is ambiguous). Depending on whether or not you lean left or right is likely to impact if you would prefer a strict reading, a contextual reading, or a loose (spirit, not letter) reading. Additionally, federal judges get to apply the vast reams of federal law, which suffer all the problems above all the more.

  • Why in the world would you ever want “both sides” to name judges if the two sides are “follow the Constitution” and “not follow the Constitution”?

  • Regarding part of Jason’s comment: “right to privacy (never directly expressed)”

    The Constitution should be a “living breathing document” thanks to the amendment clause (as opposed to judicial interpretation). It’s easier to claim that the Constitution guarantees a particular right than to write down that right explicitly and get it adopted. A good exam question for law school students would be to write a “right to privacy” amendment that makes sense.

    Of course I would fail such an exam. Writing constitutional amendments well is hard.

    While some argue 2nd amendment is ambiguous, I think it’s perfectly clear. The British Government tried to seize guns in 1775/1776. The colonists rebelled and (eventually) founded a new government. They thought preventing the new government from seizing guns was so important that the right to bear arms became the 2nd amendment.

    I might respect the argument that the 2nd amendment is obsolete. But that’s what the amendment process is for. Not what judges are for.

    • Darrell,

      If it is “perfectly clear,” why do you have to explain it? If the people who drafted the 2nd Amendment wanted to say “The government cannot take away our guns (or arms, or firearms, or weapons), certainly they could have said it.

      I do not agree with your position that the 2nd Amendment is there to prevent seizing guns from individuals. Instead, it is to prevent the national government from seizing guns used by militias. It just so happens that it was the same thing in 1776 or 1800. Not so much today.

    • Just to be clear, I did not express a position on any of the law referenced, just pointing out that there are reasons a person might not want to go by a strict reading of the Constitution.

      It is worth noting that in your explanation, you used context of the time (British seizure) as support. This is not a strict reading of the Constitution, but a contextual one. However, for the right to privacy, you are using a different standard. A standard that is more in line with an “in the spirit of the law” reading of the fourth and fifth amendments.

      So standards for interpretation matters. What one person thinks is obvious, another will think is not. After all, time flies like a banana.

  • Walter–
    Thank you for the wonderful map/table in the Post article, which for the first time gave me a detailed understanding of Federal Appeals Court balance. I had been aware of Republican attempts to hold parity in the DC court and retain the Fourth Circuit (which caused Harry Reid to end the filibuster on confirmations), but not of how many circuits still had Republican majorities in 2017.

    Minor error? The table shows the current 9th circuit with 31 judges: 9R, 16D, 6 vacant. Wikipedia shows an unchanged total of 29 from 2017: 7R, 16D, 6 vacant.

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