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.
On 29 July 2018, Justice Ginsburg, who is currently 85 years old
declared that she planned to remain on the Supreme Court for at least 5 more years (The Guardian). The Justice is already the oldest sitting Justice of the Court. She was originally appointed by President Clinton in 1993 at the age of 60 as the second woman ever appointed to the US Supreme Court. She is a known liberal who openly opposed the candidacy of Donald Trump during the 2016 presidential election (CNN). In fact, it is common knowledge that Justice Ginsburg will not voluntarily retire during a Republican president. Given her age, she was pressured to retire during the second term of the Obama’s presidency in case his predecessor turned out to be a Republican but she did not cave (e.g. NY Times here). Now that President Trump appoints strictly conservative judges to the federal benches, Justice Ginsburg embraces herself to wait out his term in office. During the next presidential election in 2020, the Justice will be 87 but her retirement plans will necessarily depend on whether President Trump is re-elected or not. If President Trump wins again in 2020, Justice Ginsburg will have no choice but to endure yet another 4 years on the bench. If successful, this would bring her to over 91 thereby beating the current record-holder, Justice Oliver Wendell Holmes, Jr., who stepped down at the age of 90 years and 10 months. She would also beat her former colleague Justice John Paul Stevens, who retired in 2010 at the age of 90 years and 2 months. Justice Ginsburg, despite her history of cancer and regular nodding-off during official events, remains active both as an opinion writer on the bench as well as a public speaker outside the Court. Given her spirit, she might as well be capable of achieving the title of the oldest ever sitting Justice of the US Supreme Court, that is provided nothing unexpected happens of course.
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.
On 09 July 2018 President Trump nominated Judge Kavanaugh for the US Supreme Court vacancy created by the retirement of Justice Kennedy. Judge Kavanaugh is a Judge of the Court of Appeals for the powerful DC Circuit and has been serving in this capacity for 13 years. He had been initially appointed to this Court by President Bush after having served under him as a White House staffer. Even more interestingly, in the 1990s, Judge Kavanaugh worked with Independent Counsel Kenneth Starr investigating business deals of then President Bill Clinton in relation to the Whitewater development which famously led to the impeachment and then the eventual acquittal of President Clinton on the charges of perjury and the obstruction of justice in 1999.
Judge Kavanaugh is known to be an originalist with a strong record on gun laws (Heller v. District of Columbia (2011)) and the separation of powers (PHH Corp. v. Consumer Financial Protection Bureau (2017)). On the other hand, many conservative members of the Senate point out that he helped save ObamaCare’s individual mandate when the case was before the Court of Appeals by construing it as a tax (Seven-Sky v. Holder (2011)) and voted to uphold massive data collection by the NSA outside the Fourth Amendment’s protection of privacy (Klayman v. Obama (2015)). Finally, Judge Kavanaugh seems to have no clear record on the right to abortion (but see Garza v. Hargan (2017)) – the most crucial issue for the vast majority of progressive Senators.
In the incoming months, Judge Kavanaugh will face a Senate confirmation hearing and will be asked to answer multiple questions about his judicial and administrative past. The hearing will most likely be a contentious one with many Democratic Senators already vowing to vote against him. However, with a 51 majority, the Senate Republicans are likely to confirm Judge Kavanaugh in time for a new session of the Supreme Court beginning in October 2018. The vote will probably go down along the party lines with a few Democrat Senators from typically Red States perhaps voting for Judge Kavanaugh to strengthen their position before the November mid-term elections.
The most powerful man in America has finally retired. There was no one in the country’s past 30 years who had a bigger impact on the law of the United States than Justice Kennedy. No President, no Majority Leader, no State Governor had power coming even close to that of Justice Kennedy, aka the Swing Vote. The number of cases Justice Kennedy single-handedly decided is breathtaking. He is the man who allowed gay people to marry (Obergefell v. Hodges 2015) and buy firearms (District of Columbia v Heller 2008) at the same time. It seems that President Trump is now likely to appoint another young judge in the vein of Justice Gorsuch, his first pick. Whoever President Trump chooses to replace Justice Kennedy will be subjected to the most vicious confirmation process this country has ever seen. Probably even more vicious than the confirmation hearings of Robert Bork or Clarence Thomas. The President is set to announce his pick on Monday, 9 July.