Peeking ahead to the Trumpification of the federal judiciary
The Brookings Institution's Russell Wheeler points out that when it comes to judicial nominations, "The president doesn't always get exactly who he wants." I guess that should make us feel better.
My attention was grabbed by the story hawked in yesterday's washingtonpost.com "Post Most" which began:
Trump to inherit more than 100 court vacancies, plans to reshape judiciaryThe post goes on to quote some of those giddy right-wing activists, and to take note of the considerable anger on the other side, Democrats furious over Republicans' abusive handling of Obama judicial nominations, leaving federal court from the Supreme Court on down undermanned, in many states critically so. There is, for example, the 4200-word statement issued this month by Pat Leahy, ranking Democrat on the Senate Judiciary Committee,
By Philip Rucker and Robert Barnes
Donald Trump is set to inherit an uncommon number of vacancies in the federal courts in addition to the open Supreme Court seat, giving the president-elect a monumental opportunity to reshape the judiciary after taking office.
The estimated 103 judicial vacancies that President Obama is expected to hand over to Trump in the Jan. 20 transition of power is nearly double the 54 openings Obama found eight years ago following George W. Bush’s presidency.
Confirmation of Obama’s judicial nominees slowed to a crawl after Republicans took control of the Senate in 2015. Obama White House officials blame Senate Republicans for what they characterize as an unprecedented level of obstruction in blocking the Democratic president’s court picks.
The result is a multitude of openings throughout the federal circuit and district courts that will allow the new Republican president to quickly make a wide array of lifetime appointments.
State gun control laws, abortion restrictions, voter laws, anti-discrimination measures and immigrant issues are all matters that are increasingly heard by federal judges and will be influenced by the new composition of the courts. Trump has vowed to choose ideologues in the mold of the late Supreme Court justice Antonin Scalia, a conservative icon — a prospect that has activists on the right giddy. . . .
saying that by blocking [Obama Supreme Court nominee Merrick] Garland, Republicans had committed “the most outrageous act of obstruction and irresponsibility” that he had seen in his 42 years in the Senate.Naturally, Judiciary Committe Chairman Chuck Grassley considers the only relative statistic that Obama got three more judicial appointments confirmed in his eight years as president than George W. Bush did, 329-326. And no doubt Republicans are smarting from the considerable transformation of the federal judiciary, in terms of basic legal competence and diversity, wrought by those 329 "Obama judges." Their response was to pretty much shut the pipeline, leading to the present horrendous backlog, even of nominees confirmed by the Senate Judiciary Committee. And because Republicans have unlimited license to be both liars and imbeciles, they can pretend that the record on Senate treatment of actual judicial appointments doesn't matter -- including Majority Leader Mitch McConnell's wholly unprecedented refusal even to consider the Garland Supreme Court nomination.
Speaking more generally about circuit and district court vacancies, Leahy added: “Despite the fact that there are dozens of qualified, consensus nominees pending on the Senate floor right now, we will finish this Congress having confirmed just 22 judicial nominees in two years. That is the lowest number since Harry Truman was president.”
So what lies ahead for the federal judiciary, apart from the like-as-not three Supreme Court vacancies that will need filling? The Post-ies offer one veteran judicial observer's analysis.
Russell Wheeler, an expert on judicial nominations at the Brookings Institution, said Trump has a great opportunity to change the partisan split in the federal courts. He predicted that by mid-2020, Republican appointees would hold about half of the 673 district judgeships, as opposed to the current 34 percent. And among the 179 circuit court judgeships, Democratic appointees now hold a slim majority, 51 percent, but that could fall to about 43 percent.Well, okay, I suppose. It's just that present-day congressional Republicans have an impressive history of doing whatever it takes to get what they want, and to hell with whoever or whatever gets in their way.
But Wheeler warned that there are important limitations to Trump’s power. For one thing, many of the judges most likely to leave their appointments in the coming years were appointed by Republican presidents, meaning there will be fewer opportunities to shift the partisan makeup.
And perhaps more importantly, 28 of the 50 states will be represented by at least one Democratic senator, including large ones such as California, Florida and New York. Senate leaders have a tradition of considering nominees only if they are supported by both senators representing their state — and Democratic senators are expected to bargain hard with the Trump administration, just as Republican senators did with Obama’s.
“The president doesn’t always get exactly who he wants,” Wheeler said.
BUT THERE IS A STOPGAP SOLUTION: THE ONE
CRAFTED BY NO LESS THAN SENATOR McCONNELL
Ironically, the McConnell Garland-stonewalling strategy points the way to at least a stopgap solution. Miss Mitch, lying his putrid guts out, as he so often does (like so many Republicans, his basic approach to the truth is "Why resort to it when there's a usable lie available?"), that there was precedent for not considering a Supreme Court made in a president's final year. The truth (ooh, that word again!) is that the precedents apply to appointments considerably later in the president's final year, not to leaving a Supreme Court seat vacant for more than a year.
However, now that it turns out to be a matter of interpretation just how early in a presidential term the embargo on judicial nominees applies, I can't think why it shouldn't already apply to President Trump, and the Senate shouldn't be allowed to consider any judicial nominees from him. After all, there's a presidential election less than four years away, and as Miss Mitch insisted, the people have a right to be heard before the Senate rushes to judgment.