President Trump’s efforts to transform the federal judiciary will enter a new front in the second half of his first term, with the president having the chance to rebalance the nation’s more liberal-leaning courts.
There are 12 vacancies currently to be filled in the appellate courts, according to the Administrative Office of the U.S. Courts, and three future vacancies. Six of the open seats are in the 9th U.S. Circuit Court of Appeals, which is considered to be the most liberal.
If all current vacancies on the San Francisco-based court are filled, the court would still have a liberal bent, but Democratic appointees would have a 16-13 advantage, compared to the 18-7 advantage they held when Trump was inaugurated, according to research from Russell Wheeler, a visiting fellow at the Brookings Institution.
In Trump’s first two years in office, the GOP-controlled Senate confirmed 30 of his nominees to the appellate courts, solidifying and expanding conservative majorities in circuit courts located in the South and Midwest.
Wheeler’s research shows that if all current and known future vacancies are filled, Republican appointees would make up 54 percent of all active appeals court judges. However, only one circuit will have flipped from a Democratic-appointee majority to a Republican-appointee majority: the 3rd U.S. Circuit Court of Appeals, on which there are currently two vacancies.
In the 2nd U.S. Circuit Court of Appeals, which currently has two vacancies, filling the open seats on the bench would bring the total number of Republican-appointed judges to six. The New York-based court currently has seven judges named by Democratic presidents.
Even if Republicans find it easier to confirm Trump’s nominees after widening their majority in the Senate from 51 seats to 53, the president’s efforts to reshape the appellate courts could level off in the next two years once current vacancies are filled.
“If the vacancy creation cools down, they will have reached a plateau,” Wheeler said of the White House. “It still will have an impact, but I don’t think he’s going to be appointing another 30 judges to the courts of appeals for the next two years.”
Instead, seats on the appellate courts that do open up in the future are likely to come from Republican-appointed judges, as Democrats become less likely to take senior status while Trump is on office, Wheeler said.
Curt Levey, president of the Committee for Justice, a group that advocates for conservative judicial nominees, attributed this to efforts by Trump’s opponents to stymie his agenda.
“I think that now it’s fair to see much of the Democratic appointees in the federal judiciary view themselves as the ‘Resistance’ and they will be more likely not to let Trump replace them,” Levey told the Washington Examiner.
Levey emphasized the stakes of flipping the ideological balance of appellate courts.
“Although a lot of the issues are decided by the Supreme Court, there’s also plenty decided by the circuit courts,” Levey said. “As a practical matter, it really does matter whether one party controls four, as they do now, six maybe, as Republicans will in two years, or maybe nine to 10, after a second Republican term. It’s more than a numbers game. It will have a real impact on the law.”
Sorting judges by partisan affiliation should not be the only criterion for evaluating the president’s record, cautioned Carrie Severino, chief counsel of the Judicial Crisis Network.
“The important thing when choosing judges is not whether one has an R or D after his or her name, but what their approach to the Constitution is. Attention to judicial philosophy has been a real hallmark of judicial nominations [for this president],” Severino told the Washington Examiner. “It’s important to have judges who are going to interpret the Constitution and the law according to their text.”
[Also read: With Republicans keeping Senate, get ready for a flood of Trump judges]
