The nation's judicial branch is headed for a massive overhaul under President Trump, according to Leonard Leo, an adviser to Trump on the Supreme Court and the judiciary.
Leo outlined the right-leaning legal community's strategy to remake the federal courts while at the Acton Institute in Michigan for an event called, "A judicial renaissance? The Trump administration and the future of the federal judiciary." The Acton Institute, a think tank dedicated to "a free and virtuous society characterized by individual liberty and sustained by religious principles," shared video of Leo's event with the Washington Examiner.
For constitutionalists, Trump is "the change we've been waiting for," Leo said at the Acton Institute on Thursday.
"He's certainly a man with an eye for opportunity, and he sees the chance history has given him to change the American judiciary for the better," Leo said. "We're now looking at the possibility of as many as three Supreme Court vacancies and more than 200 lower court seats to fill just in these next few years."
Asked about the rumors that Justice Anthony Kennedy could retire this summer, Leo answered, "Nobody knows. [Kennedy] may not even know." Leo said the White House should always be preparing for another vacancy and vetting prospective nominees so that it will not matter if Kennedy chooses to retire.
The prospect of change may be even greater at the federal appeals courts, Leo indicated.
"This president is going to have an unprecedented number of vacancies to fill," Leo said. "He already does. He's got 134 right now, my prediction is he'll probably get 60 to 70 more court of appeals vacancies. You're talking about a very, very large swath of people who are going to be cycling out and new people cycling in. You could see as much as a third of the court of appeals in this country changing hands [and] at least that much with the district courts. That's serious stuff."
Of the 13 federal circuits, Leo said "there are probably nine" where the majority of judges embrace views that oppose Leo's judicial philosophy. Leo identified the specific circuit courts he is targeting to tip the balance of the courts in conservatives' direction.
"With some of the circuits, things will move faster," Leo said. "So for example, circuits like the 11th, the 8th, the 7th, those are circuits where the delta is smaller; couple votes. 9th, 2nd, 3rd, 1st, 4th, maybe a couple of others, D.C., it's going to take longer. It could take two terms to start to really see swing."
Leo said Thursday that Senate Democrats have indicated they intend to use the Senate's "blue slip" policy to thwart Trump's judicial nominees. Under the Senate Judiciary Committee's blue slip policy, a state's senators are consulted by the governing administration before a president nominates a judge from that state, regardless of party affiliation, per a Congressional Research Service report that details the blue slip policy.
Senate Republicans lowered the threshold of votes required to confirm a Supreme Court justice to 51 votes to confirm Justice Neil Gorsuch, and Senate Judiciary Committee Chairman Chuck Grassley soon may have to decide if his committee will adhere to the blue slip policy when considering Trump's other nominees in the face of Democrat obstruction.
Leo did not sound intent on preserving the Senate's blue slip practice and argued at the Acton Institute that "the blue slip has never been holy writ." Leo, who took a temporary leave from his position as executive vice president of the Federalist Society to help confirm Gorsuch, was not shy about describing his organization's role in changing the direction and balance of federal courts. The Federalist Society bills itself as a group of conservatives and libertarians "interested in the current state of the legal order."
Kris Mauren, Acton Institute co-founder and executive director, introduced Leo as having "a significant leadership role in the selection and successful confirmation of a third of the currently sitting justices on the Supreme Court." In taking the podium, Leo grinned and noted that his work was not yet done.
"I've seen that comment about the third of the Supreme Court, I prefer controlling interests," Leo said to laughs from the crowd. "But we haven't quite been able to launch a hostile takeover yet."
Leo talked about the work the Federalist Society, a 501(c)(3) nonprofit organization from which he took leave, did to boost Gorsuch.
"Kris, you were very generous to mention our labors in promoting the confirmation of Justice Neil Gorsuch and it's true, we at the Federalist Society gave that effort our all," Leo said. "If the aim is a free and virtuous society under the rule of law, what cause in recent years could be as crucial as assuring a worthy successor to Justice Antonin Scalia."
In response to a question from the audience about his and the Federalist Society's involvement in guiding the president's selection of judicial nominees, Leo noted, "the Federalist Society is not this monolithic central planner" that sits around creating lists of potential nominees and shipping the names off to Trump.
Throughout the judicial confirmation battles since Trump took office, Senate Democrats have complained about the conservative groups involved in crafting the president's Supreme Court short lists, particularly the Federalist Society. Illinois Sen. Dick Durbin questioned a 6th Circuit Court of Appeals nominee about the Federalist Society at length during Senate Judiciary Committee hearings last month, and several Democrats on the Senate Judiciary Committee grilled Justice Neil Gorsuch about his ties to the group during his confirmation hearing for the Supreme Court.
During his speech, Leo left little doubt that he knew exactly how he would like to see the federal courts' composition changed. "I would love to see the courts unrecognizable, but I don't think that's something that's going to happen in the future."
The courts will not become unrecognizable as Trump fills vacancies, Leo said, "but people who believe in limited constitutional government are actually going to have a fighting chance and might actually start winning again."
Leo has won much praise and acclaim from conservatives in conjunction with his work to confirm Gorsuch. Earlier this month, Leo accepted the 2017 Canterbury Medal from the Becket Fund, a nonprofit legal and educational institute that describes its mission as protecting the free expression of all faiths.