Keeping Brett Kavanaugh off the Supreme Court is priority number one. But saving the appellate courts is nearly as important. Donald Trump’s managed to get 24 of his picks on the federal appellate bench. Another two are a sure thing, and he’s got 11 vacancies yet to fill. These vacancies are among the dozens engineered by Senate Republicans, who blocked President Obama’s nominees—including Supreme Court nominee Merrick Garland—to set up just this kind of judicial takeover.
Maybe 24 doesn’t sound like a lot. There are 179 federal appellate judgeships, after all. But it’s not about the number of overall seats or total Trump confirmations: It’s about where Republicans are planting their judges and what that does to the ideological balance of various appellate courts. On the smaller courts especially, Trump’s making an outsized impact.
Federal appeals courts make most law. Vanishingly few cases go to the Supreme Court. That means that the three-judge panels that the appellate courts use are nearly always the last word for whoever lives in the states the court covers. The exception lies with en banc, or full court, hearings, when enough judges on a court want to rehear a panel’s case. In those instances, the full court vacates the panel decision and hears the case afresh.
It’s bad enough that Trump’s increasing the odds of a two-conservative or even two-Trump panel on appeals courts. The really dangerous part, though, pertains to the en banc procedure: On courts with a majority of Republican-appointed, or Trump-appointed, judges, they can essentially overrule any panel decision that doesn’t go their way.
En banc sittings are supposed to be rare, but what are the odds Trump’s highly ideological, and political, picks are going to miss opportunities to “correct” the law to mirror their views? These guys—yes, pretty much all guys—are the product of the Federalist Society, which grooms, advances, and then pushes conservative lawyers for judgeships.
The claim that this takeover is somehow less egregious because many of Trump’s nominees are replacing conservative judges is, to put it mildly, bullshit. That’s not how our judiciary was set up to work.
The judiciary is meant to be a working branch of government: When vacancies arrive, compromising the judiciary’s function, it’s the president’s job to nominate and the senate’s job to consider, advise, and confirm. Home-state senators traditionally got a say in nominations from their state. This process, when followed, generates courts—and federal law—that’s more balanced. Senate Republicans are instead playing politics, forcing in judges who espouse extreme far-right views.
Consider the Seventh Circuit—that’s Illinois, Indiana, and Wisconsin—and the Eighth—Iowa, Arkansas, Minnesota, and Missouri. Just two of the Seventh Circuit’s 11 judges were appointed by Democrats; on the Eighth, it’s just one. Trump’s seated four judges on the Seventh already; he’s gotten three on the Eighth and nominated a fourth. Just five of 17 judges on the Fifth Circuit—that’s Texas, Louisiana, and Mississippi—were nominated by Democrats.
Reminder: These judges are young.