The White House has announced President Trump’s “twelfth wave” of judicial nominees. Among them, you’ll find one particularly odious character: David J. Porter, a.k.a. Dave Porter, an anti-choice, anti-LGBTQ, pro-gun corporate attorney out of Pennsylvania who’s been described as a “tea party lawyer.”
When news that the state’s senators were considering him for a federal judicial appointment broke in 2014, almost 40,000 Pennsylvanians signed on to an effort to head off his selection. If confirmed, Porter would ascend to the Third Circuit, which hears federal appeals from Pennsylvania, New Jersey and Delaware. It’s one of three circuits that’s vulnerable to being “flipped” under Trump.
President Donald Trump may get a chance to “flip” three federal appeals courts that currently have a majority of Democratic-nominated judges.
Filling current vacancies at the U.S. Courts of Appeals for the Second, Third, and Eleventh Circuits would put Trump in striking distance of having a majority of Republican nominees on those courts.
This “wave” of nominees announced Tuesday also included one more prospect for the Third Circuit and another for the Eleventh Circuit.
In many ways, flipping out about flipping courts misses the big picture. As I’ve noted before, decisions are made by three judge panels.
The assignment process can vary by circuit, but the three-judge panels that decide appeals in circuit courts are generally selected at random from the circuit’s active judges. (Each circuit has both active and senior judges, or judges who have taken “senior status” and can opt to hear fewer cases.) Each three-judge panel hears multiple cases in that format—Judge A, Judge E, Judge G—not just one case.
To say that the party of the president who appointed a judge will determine how they’ll rule is to oversimplify. Just ask former President George H. W. Bush, who nominated retired Justice David Souter only to see him drift left. Yet, party provides a useful metric.
Trump’s already gotten three seats on the Sixth Circuit Court of Appeals, which has jurisdiction over federal appeals in Kentucky, Michigan, Ohio and Tennessee. Major cases could now be decided by an all-Trump panel; of course, it only takes two Trump judges to determine the outcome of a case.
Any shift in composition—particularly when the new additions are ideologues with no interest in moderation or independence—can change the course of circuit precedent. Although if a majority of the full court opposes a panel's decision, they can reverse the panel by rehearing the case “en banc,” with all judges weighing in. Courts rarely use this option, though.
Even when they’re not making law in the majority, Trump’s appointees will be affecting it. The presence of Trump’s appointees will change how panels rule.
More Republican appointees could have a major effect on the circuit, even without a majority, [South Texas College of Law Houston professor Josh] Blackman said.
“Internally, the presence of a dissenting voice can sometimes be used to moderate a majority opinion,” he said. “Externally, a vigorous dissent from a panel opinion, or from the denial of rehearing en banc, can help gin up attention for” U.S. Supreme Court review.
That’s why keeping an eye on vacancies in other circuits as well is necessary, if depressing.
Trump also has an opportunity to more than double the number of Republican appointees on the Ninth Circuit, which now has seven vacancies after the sudden death of Judge Stephen Reinhardt March 29.
Public pushback against horror-show nominees now and strong turnout in November are the only prospects for saving the judiciary from being radicalized for a lifetime—short of judicial impeachments, anyway.