Federal Judges, Politics

Lower-Court Judicial Nominations By The Trump Administration

Because the Supreme Court isn't the only game in town.

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Judge banging gavel in courtOver the next few days, all eyes will be on the U.S. Supreme Court, now that confirmation hearings for Judge Neil Gorsuch are underway. You can follow the action by following our Twitter feed: @ATLblog.

But savvy observers of the federal judiciary, including readers of Above the Law, know that SCOTUS isn’t the only game in town. The Court hears around 80 cases each Term, while the federal courts of appeals receive more than 50,000 new cases each year. So for the vast, vast majority of appeals, the circuit court is the last stop.

And for the vast, vast majority of lawsuits filed in federal court, the trial court is the last stop. The federal district courts get more than 350,000 new cases each year. Most of these cases will never make it to an appellate court, meaning the district judge gets the final world.

So the brilliant women and men who serve as federal judges on the lower courts wield a great deal of power. And President Donald Trump, who will get to fill a great many judgeships, could have a lasting legacy on the federal judiciary.

How is the Trump Administration going about the process of picking these judges? Over the weekend, Eric Lipton and Jeremy W. Peters had a very interesting New York Times piece about the subject. They write:

Most Americans have probably never heard of Leonard A. Leo, who has long served as executive vice president of the Federalist Society, an organization of conservatives and libertarians who “place a premium on individual liberty, traditional values and the rule of law.” But as Mr. Trump begins the process of filling what could be the most federal court vacancies left to any president in nearly a half-century, Mr. Leo is playing a critical role in reshaping the judiciary.

He sits at the nexus of an immensely influential but largely unseen network of conservative organizations, donors and lawyers who all share a common goal: Fill the federal courts with scores of judges who are committed to the narrow interpretation of the Constitution that they believe the founders intended.

Okay, I have to quibble a bit with the reference to “narrow interpretation” of the Constitution. I have the same problem with this term that the late Justice Antonin Scalia had with the theory of “strict constructionism” (which was often, and erroneously, attributed to him). As Justice Scalia explained, “A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”

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And I must also quibble with the focus on what “the founders intended.” Most current adherents of originalism — including the late Justice Scalia, and many Fed Soc-type judges — focus more on “original public meaning” as opposed to “original intent.”

I do not quibble, however, with Lipton and Peters when it comes to the huge influence of Leonard Leo and the Federalist Society on judicial nominations. President Trump has publicly thanked both the Society and Leo on multiple occasions when discussing the judiciary (including the announcement of Judge Gorsuch as his SCOTUS nominee).

The Federalist Society and Leonard Leo are not the only power brokers here, as the Times notes:

This judicial reformation is being coordinated from Washington by a relatively small team closely aligned around Mr. Leo, who is on leave from the Federalist Society while he helps the White House shepherd the Gorsuch nomination. The network includes John G. Malcolm of the Heritage Foundation and Ann Corkery, a Washington lawyer who along with her husband, Neil, oversees the Judicial Crisis Network and related dark-money groups that also support the cause.

The reference to “dark-money groups” might sound sinister to some, but it shouldn’t. It’s just a term of art referring to nonprofit organizations that aren’t legally required to disclose their donors. Given the polarized times in which we live, where a person or company can get protested or boycotted by either the left or the right for taking a stance, it’s not hard to understand why someone might want to donate anonymously to a group that gets involved with hot-button issues.

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How many judgeships might President Trump end up filling: Per the NYT:

Mr. Trump already has 124 judgeships to fill — a backlog created by Senate Republicans who blocked the confirmation of many of President Barack Obama’s nominees. That includes 19 vacancies on the federal appeals courts.

Because of the age of many judges today, the White House expects between 70 to 90 appeals court positions to open up over the next four years. That would give Mr. Trump the opportunity to fill anywhere from one-third to half of all appellate seats — a profound impact considering that those courts are often the final word on thousands of cases that never reach the Supreme Court.

What is the Trump Administration looking for in its judges? Lipton and Peters report:

Mr. Trump gave broad discretion to Mr. Leo and his colleagues. Mr. Trump’s most important criterion, these lawyers said, was that he wanted judges who were “not weak” and of “high quality.”

Their approach in coming up with candidates was similar to President Ronald Reagan’s. “They had this very sophisticated, detailed frame of reference from which they could begin to say, ‘O.K., well, who understands these things like we do?’” Mr. Leo said in an interview, referring to the Reagan era. “As opposed to an administration that might sit around and say, ‘Who’s a really smart lawyer who’s been really accomplished?’ Or, ‘Hey, what about my frat buddy from 1964?’”

And as Reagan did by nominating Justices Scalia and Anthony M. Kennedy, Mr. Leo and his conservative colleagues have looked for judges who can serve as long as possible. “Young is good,” Mr. Leo said. “There will be an opportunity for a transformation of the federal bench.”

This is absolutely the conservative playbook. Young circuit and district judges go on to become young Supreme Court nominees. Judge Gorsuch, 49, is a perfect example: he joined the Tenth Circuit at the tender age of 38.

If I have one overall quibble with the Times piece, it’s the “vast right-wing conspiracy” undertone to the whole article. There’s nothing wrong with conservatives understanding the importance of the courts and exercising their First Amendment rights to fill those courts with like-minded women and men. If progressives have a problem with that, then they should do the same. As Senator (and former SCOTUS clerk) Richard Blumenthal told the Times, when it comes to the judiciary, “I think the progressives of the Democratic Party have been less vigilant and vigorous than the right.”

Senate Judiciary Chairman Chuck Grassley wants to move quickly on the Gorsuch nomination, hoping to have the committee vote in late March or early April. Republicans hope to have Gorsuch confirmed before the two-week recess beginning on April 7.

So it won’t be long before the Trump Administration and the Senate Judiciary Committee start filling vacancies in the lower courts. Indeed, word on the street is that the White House Counsel’s office has already started interviewing possible judicial nominees. As one might expect, the interviewees are skewing young — many are only in their 40s — and conservative.

I’d like to start reporting on the process of picking judicial nominees for the circuit and district courts, including possible nominees for prominent openings. If you have information to share, please email us, subject line “Judicial Nominations,” or text us (646-820-8477), including the words “Judicial Nominations” somewhere in your text. Thanks.

P.S. Disclosure: I occasionally speak at events sponsored by the Federalist Society, which hosts speakers from across the ideological spectrum, and sometimes the Society covers my travel expenses and/or provides its standard honorarium. I’ll be at one such event later this week, this Thursday, March 23, in Phoenix. Please join us if you can!

In Gorsuch, Conservative Activist Sees Test Case for Reshaping the Judiciary [New York Times]

Earlier: Friday Night Fights — At The Ninth Circuit

DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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