Senate Democrats are finally in a position to push back against Republicans’ campaign to take over the judiciary. It’s not a moment too soon. Justice Neil Gorsuch was President Donald Trump’s worst blow to the judiciary, but that’s not to say his other nomination “wins” haven’t been devastating.
Mr. Trump has repeatedly cited the elevation of Neil Gorsuch to the Supreme Court. Less noticed is the confirmation of 12 judges to the influential U.S. courts of appeals, whose rulings are the final word in the overwhelming majority of cases in the federal system.
It’s odd Trump only brags about Gorsuch—unless he just doesn’t understand the magnitude of the damage he’s done at the federal appellate level. Every nominee confirmed is a victory for Trump, but, when it comes to judicial nominations, some wins are more momentous than others. Blocking additional confirmations is now critical.
Some background: 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. The Sixth Circuit has only 16 active judges—and just five were appointed by Democrats. The balance of the Sixth Circuit went from 5-to-8 to 5-to-11, Democratic-appointed to Republican-appointed judges, likely drastically changing the net direction of the court’s jurisprudence.
Trump’s gotten two seats on the Fifth Circuit—that’s Louisiana, Mississippi and Texas—and has two nominees in the confirmation queue. That’s a 17-judge circuit with just five Democratic-appointed judges. It was 5-to-8. It’s now 5-to-10. If Trump gets his way, it’ll be 5-to-12.
The Eighth Circuit, whose rulings are binding on federal courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska and both Dakotas, has grown by two since Trump’s inauguration. He’s on his third nominee, who’ll bring the total to 11. This ratio’s even more dramatic: There’s just one Democratic-appointed judge among the 10 currently seated.
Radical imbalances make conservative majorities more likely among three-judge panels; worse, they make it much easier for the kinds of right-wing idealogues Trump favors to overturn the circuit’s precedent. In addition to panel hearings, circuits have the option of hearing a case “en banc,” or as the full circuit. Three-judge panels are supposed to follow the circuit’s precedent. When all 16, 17, or 11 judges sit together, though, they can overturn precedent and remake the law however the majority sees fit.
The only reason Trump has this historic number of vacancies to fill? Unprecedented Republican obstructionism. Now, the same Republicans who jammed the process during the Obama administration are ramming nominations through. These senators have proven almost unconditionally willing to overlook glaring deficiencies. One might guess that the intensity of the Senate GOP’s present fever pitch owes in part to a desire to snag as many confirmations as possible before the midterm 2018 elections.
Fortunately, as the battle’s heating up, things are finally looking up for Democrats—or at least looking a little tougher for Republicans.
Now with midterm elections looming, Republicans are preparing for another big push on judges while they have the Senate majority. They will do it, however, with less margin for error.
Democrats believe they could be in a better position than in 2017 to push back on nominees they view as too ideological or unqualified, thanks to shifting political dynamics, including the arrival of new Democratic Sen. Doug Jones, whose special election win in Alabama narrowed the GOP’s majority to 51-49. The end of 2017 also saw slight cracks in Republican unanimity, which contributed to the downfall of a handful of nominees.
The arrival of two high-profile Democratic senators, Kamala Harris of California and Cory Booker of New Jersey, to the Senate Judiciary Committee also could make a difference.
Although it’s understandable that Democrats in the Senate may be in perma-triage mode, it’s critical to remind them of the stakes of the battle for the judiciary—and that the people who’ll be affected by the courts’ rulings day to day are watching.
