President Trump has made clear on several occasions that judicial nominations are one of his top priorities. In terms of Appeal Courts, as of 15 September 2018, he has successfully appointed 26 Circuit Judges, with further 10 nominations pending before the Senate and another 3 positions awaiting his nomination (13 vacancies in total). Many commentators have been pointing out that President Trump might not only change the constitution of the US Supreme Court by appointing Judge Gorsuch (and most likely Judge Kavanaugh) to its bench, but also flip majorities of at least some Appeal Circuits. However, upon a closer examination, this seems rather unlikely, at least in President Trump’s first term in office.
The US Courts of Appeals are grouped in 11 Circuits in addition to the so called special DC Circuit. As of 15 September 2018, the 1st Circuit is the only one which has not had any vacancies since the last general election and as such it has a stable 4-2 Democratic majority. The 2nd Circuit has 3 vacancies but even if filled by President Trump, it will retain a Democratic majority of 7-6. The 3rd Circuit has 2 vacancies and it has already seen 1 judge appointed to its bench by President Trump in addition to 4 judges appointed by previous Republican Presidents so assuming President Trump fills those 2 empty seats, the Circuit will be evenly split 7-7 between the Republican and Democratic appointees. The 4th Circuit has also had 2 judges appointed to its bench by President Trump on top of 4 judges appointed by previous Republican Presidents but it retains a stable Democratic majority of 8-6. The 5th Circuit currently has 1 vacancy, 5 Trump appointees and 6 other Republican-appointed judges making its overwhelmingly Republican 12-5. The 6th Circuit is also overwhelmingly Republican with 4 Trump appointees on top of 7 other Republican-appointed judges adding up to a strong 11-5 Republican majority. The situation is similar in the 7th Circuit which has 4 Trump appointees in addition to other 5 judges appointed by previous Republican Presidents adding up to a stable 9-2 Republican majority. This is again seen in the 8th Circuit where President Trump has appointed 3 judges on top of 7 other Republican-appointed judges adding up to an overwhelming Republican majority of 10-1. The most liberal of all the Circuits, the famous 9th Circuit currently has 7 vacancies, 1 Trump appointee and another 5 Republican-appointed judges but even assuming all those vacancies are filled by President Trump, the Circuit will nevertheless retain a stable Democratic majority of 16-13. A stable Democratic majority of 7-5 will also hold in the 10th Circuit where President Trump has appointed 2 judges on top of another 3 appointed by previous Republican Presidents. The 11th Circuit is another Circuit which is evenly split 6-6 between the Democratic and Republican appointees after President Trump has appointed 3 judges in addition to another 3 Republican-appointed judges already on the bench. Finally, the DC Circuit consisting of 1 Trump appointee and 3 other Republican-appointed judges also retains a stable Democratic majority of 7-4.
Given the structure of vacancies inherited by President Trump, it is unlikely that his appointments will be able to flip any Appeal Circuit. As of 15 September 2018, despite any appointments made so far, and any other likely to be made in President Trump’s first term, Democratic-appointed judges hold majorities in 6 Circuits (1st, 2nd, 4th, 9th, 10th and the DC Circuit) and Republican-appointed judges hold majorities in 4 Circuits (5th, 6th, 7th and 8th). The only difference made by President Trump’s appointments to the Appeal Courts could be observed in the 3rd and 11th Circuits which moved from stable Democratic majorities to being evenly split. In any event, with the appointment of Judge Gorsuch and the likely appointment of Judge Kavanaugh to the US Supreme Court, it is not the Appeal Courts where President Trump intends to make his judicial legacy most visible.
Between 5 and 7 September 2018, the Senate Judiciary Committee held confirmation hearings for the Supreme Court nominee Judge Kavanaugh. The Committee composed of 21 members (10 Democrats and 11 Republicans) questioned Judge Kavanaugh on his judicial record and philosophy. As expected, it was a hugely contentious hearing with constant shouts from the audience leading to multiple arrests and Democratic Senators attacking the nominee’s credibility and independence. However, after 3 long days, Judge Kavanaugh came out of the hearings without any significant blunder. Most of the time he followed the so called Ginsburg Rule declining to answer any question concerning any legal issue which could possibly come before the Court. Perhaps most crucially, Judge Kavanaugh also described Roe v Wade as an ‘important precedent’ therefore making it possible for the 2 pro-choice Republican Senators Lisa Murkowsky of Alaska and Susan Collins of Maine to support his nomination. The 2 Senators are considered the swing votes in the upcoming confirmation vote given that the Republicans need all their Senators to vote yes, assuming the vote would go down along the party lines, which is likely. Now that Judge Kavanaugh has not raised any red flags for any Republican Senator, he is likely to be confirmed by the Senate by the end of September so that he can join the Court by 01 October when its term starts.
The confirmation of Judge Kavanaugh to the Supreme Court will indeed be a historical moment. For the first time in almost 80 years the US Supreme Court will have a reliable originalist majority. The last time there was an originalist majority on the Court was prior to the so called ‘switch in time that saved nine’, i.e., before Justice Owen Roberts abandoned the originalist approach in the case of West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) thereby ending the so called Lochner era in the Court’s jurisprudence. For the next 80 years the Court will almost consistently decide cases coming before it based on the premise that the US Constitution is a living document whose meaning changes over time. Now all this is about to change. This, of course, does not mean that the Court will suddenly start overruling 80 years of precedents. However, given how much is at stake, it is no surprise the liberal forces are very anxious about their legacy.
With the nomination of Judge Kavanaugh for Justice Kennedy’s seat at the Supreme Court, some commentators raised the issue of President Trump rapidly transforming the Federal Courts by appointing a record number of District and Circuit Court Judges (e.g The Guardian here and here). This claim is based mostly on the fact that a record number of such Judges have been appointed in President Trump’s first 1,5 years in the office comparing with previous Presidents (e.g. The Hill here). In as much as this is probably true, the claim that President Trump will appoint an unprecedented number of lower Courts Judges is rather misleading. As of 25 July 2018, President Trump has nominated 137 Judges of the so called Article III Courts (USCourts.gov). Although this seems like a high number for only 1,5 years into the presidency, so far the US Senate has confirmed only 44 of those 137 nominations (including 1 Justice of the Supreme Court, 23 Judges for the United States Courts of Appeals and 20 Judges for the United States District Courts). This is still claimed to be one of the highest numbers for any presidency after only 1,5 years. However, even if this pace is maintained, and President Trump is re-elected in 2020, he will have only appointed around 234 Judges throughout his two terms. This is not even close to his predecessor, President Obama, who appointed 308 Judges between 2008 and 2016. It is also far from the three record-holders in this regard, President Clinton, President Reagan and President W. Bush, who appointed 357, 347 and 310 Judges, respectively.
Even this calculation is based on the assumption that (a) President Trump will be re-elected and (b) that the Republicans are able to retain the Senate majority of at least 51 votes throughout the two presidential terms. Both assumptions are easy to displace. In fact, the Republicans might as well lose the Senate majority in the November mid-term elections and, given the degree to which the judicial confirmation process has been politicised, none of President Trump’s nominees awaiting a confirmation hearing might receive his or her judicial commission after all. It is clear that a Democratic Senate will not help President Trump elevate conservative Judges to the Federal Courts. In such case, President Trump might end up on the lower end of the SCOTUSBlog ranking with no more than 50 judicial appointments in total.