President Trump received wide acclaim from his supporters for the selection and confirmation of Supreme Court Justice Neil Gorsuch, but legal experts are urging Trump to make good selections soon for scores of vacancies on lower federal courts.
More than three months into his administration, Trump has sent just one nominee for a federal appeals court opening. There are 18 others to fill. He also has the opportunity to nominate more than 100 federal district court judges, but has yet to act.
Judicial Crisis Network Chief Counsel and Policy Director Carrie Severino says it is vital to get strong defenders of the Constitution on these courts as soon as possible.
“They’re incredibly important,” she said. “All of these are lifetime seats on the federal courts. Remember, the Supreme Court takes less than one percent of the cases appealed to it every year. That means well upward of 99 percent of cases are decided at the lower courts.”
“Many of those district court cases don’t even get up to the appellate level. They might end there. So it’s a huge, huge impact on American law,” said Severino.
Severino says we can just look to the Obama years to see how much impact a president can have on the judiciary.
“Normally, a two-term president can turn over two-thirds of the judiciary. Barack Obama certainly did that. When he came into office, one out of the thirteen courts of appeal had a Democratically nominated majority of judges. When he left, nine of thirteen did,” said Severino.
During the campaign, Trump rolled out a list of 21 possible choices for the Supreme Court vacancy. The list included Gorsuch. While Trump may not have a formal list for all these other vacancies, Severino fully expects the same careful vetting to pick quality judges.
“[Gorsuch] has been one of the signature accomplishments of his first hundred days in office. I can’t imagine why the president would want to diverge from an incredibly successful strategy so far and frankly, some of the people on that list could be candidates,” said Severino, noting that District Judge Amul R. Thapar, who was on Trump’s list, is now nominated to serve on the 6th U.S. Circuit Court of Appeals.
A big reason for Severino’s confidence in the Trump administration to get these picks right stems from what she observed in the Gorsuch process.
“Candidate Trump always said, ‘I’m going to ask the smartest people and get all the experts.’ When it came to judges, boy, he really did. He didn’t come up with a list for the Supreme Court by himself. He knew the right people to ask and I think they know the right people to ask for these spots as well,” said Severino.
She says what they should be looking for is simple and should be familiar to Trump by now.
“You want someone who is going to be faithful to the text of the law, faithful to the original understanding of the Constitution, putting the law before one’s political instinct on where they want the case to come out. We want people who are going to be judges first. I think that’s what we got with Gorsuch. I think it’s going to be the same type of vetting process,” said Severino.
With so many politically charged cases now coming before courts, Severino says it is vital to get judges whose character can withstand the firestorm.
“You don’t know what the next issue is going to be. We couldn’t have seen all these issues coming when the people currently on the bench were nominated. That’s why it’s so important to have a vetting process that doesn’t just say, ‘Here’s some topics. How do you feel about free speech? How do you feel about immigration or this and that?'” said Severino.
“We don’t need to know what their politics or policy preferences are in these things. You need someone who actually understands the judicial philosophy here, because that’s what’s going to help them get the next question down the road – that we haven’t even seen yet – correct,” said Severino.
But while Obama, succeeded in steering the federal judiciary to the left, Severino says Trump can have a huge impact in the opposite direction.
“A two-term president gets to replace two-thirds of the judges. Currently, our president is Donald Trump and it looks like he’s going to make some great picks for those slots,” she said.
Severino says Trump’s influence on the bench may actually be bigger.
“He may have more front-loaded opportunities than most presidents do, because this does seem like a very large number of vacancies. There are a lot more, I think upwards of half the federal appellate judges who are either retired or eligible to take senior status. So there could be many more coming,” said Severino.
