One of the most powerful and influential duties of any President is the appointment of Judges. Supreme Court appointments always take precedent – a little legal humor – but in their sheer number, appointments to the lower, lesser courts can be almost equally as important – and highly influential on our nation’s direction.
“There are 13 appellate courts that sit below the U.S. Supreme Court, and they are called the U.S. Courts of Appeals. The 94 federal judicial districts are organized into 12 regional circuits, each of which has a court of appeals. In addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases.”
A total of 13 Appeal Courts sitting just below the Supreme Court.
A primary reason for the legal – and social & cultural – influence of our lesser courts is that the Supreme Court hears so few cases – perhaps 80 per year are chosen to be argued before the court plus another 50 in which they hear no arguments. Judicial activism – and judicial errors – at the lower court levels are simply too numerous to be addressed at the highest legal level of the Supreme Court.
So it is that Presidential judicial appointments to the lower courts can alter our Judicial System significantly – and impact our society directly.
The 4th Circuit Court, just one level below the Supreme Court, provides a primary example. In 2007, the 4th Circuit enjoyed a 7-5 majority of Republican appointed judges. The 4th Circuit had long been considered among the most conservative of the Judicial Circuits – also known as Appellate Courts. As noted by New York Times Magazine in 2003:
“The 4th Circuit, which has eight Republican and four Democratic appointees, is not only conservative but also bold and muscular in its conservatism. It is confident enough to strike down acts of Congress when it finds them stretching the limits of the federal government’s power.”
That has changed. Dramatically. The 4th Circuit currently has ten of its fifteen judges appointed by Democratic presidents. The 4th Circuit is now regarded as one of the most liberal of circuit courts – having ruled against North Carolina’s voter I.D. law and in favor of transgender bathrooms. The 4th Circuit just recently made a ruling on rifles that sided with Supreme Court Judge Breyer’s minority opinion on Heller – effectively stating that they do not consider themselves bound by the Supreme Court’s majority decision in Heller.
Obama’s legacy may be slight in many areas – but not when it comes to our judicial system. Obama appointed 331 federal judges during his time in office – all of them lifetime appointments. By way of comparison, Reagan appointed the most at 384, Clinton 379 and George Bush II 330. Since 1993, Democratic Presidents have appointed 710 judges to Republicans 330 appointments.
Almost 70% of all judicial appointments in the last 23 years have been from Democratic Presidents.
Obama’s appointments – while in-line numerically with Bush’s – came at fortuitous moments for liberals. When Obama took office, only three of the 13 circuit courts had more Democratic than Republican appointments. That number has now grown sharply – nine of the 13 Circuit Courts have a greater proportion of judges appointed by Democratic presidents. Obama’s appointments include two Supreme Court Justices and four judges on the D.C. Court of Appeals – our nation’s two most powerful courts.
But there is hope on the horizon.
The GOP has done many things poorly in my view, but they got one thing right. When the Republicans gained control of the Senate in late 2014, they slowed judicial confirmations – confirming just 22 judges in the last two years. Democrats howled foul – but it was the voters who elected the GOP Senators for exactly this purpose.
President Trump is currently looking at 129 court vacancies – 20 on the Appeal Courts, 101 on U.S. District Courts and 8 on other courts – a historic number of vacancies. And he is ready to begin making judicial appointments as soon as today – with rolling nominations to continue for months. In addition, there are the 94 U.S. District Attorney positions that are appointed by each president.
And Democrats can do little to stop the flood of confirmations – because of previous actions they themselves employed. As I discussed in Avoid the Nuclear Option, Democrats, led by Harry Reid, used the Nuclear Option – a process that allows a simple majority vote to rewrite Senate Rules – in relation to the confirmation of federal judges. The new “definition” created by Democrats requires only a simple majority in place of a three-fifths vote on presidential nominations for federal court judgeships. And Republicans hold a slight majority at 52 to 48 in the Senate.
Slight – but enough.
Our nation has been suffering under activist judges – judges who, according to Elizabeth Slattery of the Heritage Foundation, “fail to apply the Constitution or laws impartially according to their original public meaning, regardless of the outcome, or do not follow binding precedent of a higher court and instead decide the case based on personal preference”.
Or as Judge Robert Bork forthrightly noted, “judges [who] engage in activism when their decisions cannot plausibly be related to the constitution they claim to be enforcing.”
This piece is the fourth in a series done on the state – and decay – of our judicial system. The first three can be found at; Judge Orrick’s Judicial Activism, Reversing the 9th Circuit Court of Appeals, and Judge Bork’s Olympians & the Danger of Judicial Activism. I hope you give them a read.
After three rather depressing examinations of our weakened judicial system, it is heartening to finally be able to offer an uplifting outlook. But there is a long way to travel. And much damage has been done.
Judicial appointments are an often overlooked power of the President. But in reality, judicial appointments represent some of the most influential decisions a President can make. Judges who are judiciously activist alter and shape our society – our nation – in their image. Judges who honor and respect our Constitution preserve our culture and society – our nation – in the image put forth by our Founding Fathers.
Adhering to the original public meaning of the Constitution leads us to a rule of law as was intended by the Framers of our Constitution – instead of a rule of man. It is our willingness to live by our Republic’s great charter – the U.S. Constitution – that allows us to maintain our freedom.
The importance of nominating judges – at all judicial levels – who have respect for – and adherence to – our constitution cannot be emphasized strongly enough. Judges who recognize and embrace the crucial role of Constitutional Originalism as a means for removing personal preferences and biases from their judicial rulings. It is only through the protection of our Republic’s charter – our Constitution – that we protect ourselves and our freedom.
Let us hope that President Trump swiftly fills the 129 vacancies with judges who recognize that it is their duty interpret the Constitution – not to rewrite it.
“The role assigned to judges in our system was to interpret the Constitution and lesser laws, not to make them. It was to protect the integrity of the Constitution, not to add to it or subtract from it — certainly not to rewrite it. For as the framers knew, unless judges are bound by the text of the Constitution, we will, in fact, no longer have a government of laws, but of men and women who are judges. And if that happens, the words of the documents that we think govern us will be just masks for the personal and capricious rule of a small elite.” – President Ronald Reagan
Update: There exists an archaic Senatorial tradition know as “Blue Slips” – or the Blue Slip process. A “Blue Slip” is a nothing more than a piece of paper that is sent to both Senators in the state where the nominated judge will be ruling – if confirmed. If the Senator has no objections and returns the paper with an indication of approval, the nomination proceeds with hearings. If the Senator either does not return the “Blue Slip” or returns it with an indication of disapproval – the nomination might not move forward at all. I say “might” because the Blue Slip process is not a law but more of a tradition – one that dates back to 1917.
What this means in practice is that in states with at least one Democratic Senator (30 currently), Democrats can effectively block President Trump’s Judicial Nominations in those states – if Senate Leaders – most specifically the Judiciary Chairman – agree to abide by the Blue Slip tradition.
For a more complete explanation please see my post The Blue Slip Rule – A Senatorial Roadblock to Judicial Appointments.