Why the Battle Over Trump's Court Appointees is a Game-Changer

Following a notification the Trump administration gave the ABA last spring that it was ending the tradition of inviting the organization’s independent Standing Committee on the Federal Judiciary to review the qualifications of federal judicial nominees, as reported by Politico , the Senate GOP is increasingly treating the ABA as a “liberal advocacy organization.”

As Senator Ted Cruz (R-TX) put it, “The ABA’s record on judicial nominations has been highly questionable. It has demonstrated over past decades repeatedly partisan interests and ideological interests.”

These remarks come after the GOP defended Neil Gorsuch’s nomination with his high ABA rating earlier last year. In March, Senator Chuck Grassley (R-IA) stated, “The ABA’s ringing endorsement is no surprise given Judge Gorsuch’s sterling credentials and his distinguished decade-long record on the Tenth Circuit. Former Chairman [Patrick] Leahy and Minority Leader [Chuck] Schumer have called the ABA’s assessment the ‘gold standard’ in evaluating federal judicial nominations. In light of Judge Gorsuch’s impeccable record, it’s hard to imagine any other result from the ABA’s consideration.”

Grasz is hardly the only Trump judicial nominee to be deemed unqualified by the ABA. Notably, in November, the Senate Judiciary Committee voted along party lines to approve Brett Talley as judge of the 11th Circuit’s Middle District of Alabama. Talley, who has been practicing law for three years, has never tried a case and was unanimously deemed “not qualified” by the ABA.

Since this committee vote on Talley, which has not yet gone to the full Senate floor, blog posts Talley authored urging readers to join the National Rifle Association resurfaced, among other revelations. Grassley, who is chairman of the Senate Judiciary Committee, has since urged President Trump not to move forward with Talley as a nominee, nor with Jeff Mateer, a controversial Texas District Court nominee who has said transgender children are part of “Satan’s plan.” A White House official since confirmed that Talley has “offered to withdraw his nomination thus it will not be moving forward.” The same official said Mateer will no longer be proceeding, either.

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Despite these setbacks with Talley and Mateer, neither Trump nor Senate Republicans have indicated they intend to slow down judicial appointments. In fact, in December 2017, Appeals Court nominees Don Willett and James C. Ho were confirmed by the Senate (the ABA ranked them well qualified/qualified).

What’s going on with the uptick in judicial appointments?

Nineteen of the Trump’s 71 federal judge nominations have already been confirmed—one to the Supreme Court, six to the District Courts, and twelve to the Courts of Appeals—which is more than a president has appointed this early in a presidency in half a century.

The Republican Party’s attitude toward the ABA and quick voting blocs behind controversial nominees is evidence of the GOP seizing the appointments as what journalist Charlie Savage calls “a rare unifying moment” in a time when the party is fractured on other issues such as health care. Fifty-two Federal Judiciary nominees await the Senate’s approval process.

As mandated by the Constitution, Federal Judiciary appointments are made by the president and confirmed by the Senate.

When Trump took office, he was left with an unprecedented number of empty seats in the federal judiciary, including one vacancy in the Supreme Court, 21 open seats on the federal appeals court—which is comprised of a dozen courts nationwide just below the Supreme Court—with the potential for more, and what is now 149 vacancies in the 94 federal District Courts. These District Courts are organized into twelve regional circuits, each of which has one Appeals Court.

But why was he left to inherit so many judicial seats in the first place?

In 2013, frustrated with their Republican colleagues’ shut-out of President Obama’s nominees, Democratic lawmakers evoked the “Nuclear Option” so that minority lawmakers could use the filibuster against executive and judicial nominees. The Republicans warned Democrats they would regret the rule change—and of course, they likely did after losing control of the Senate the next year. The Republicans proceeded to confirm just 22 of President Obama’s Federal Judiciary nominees in his final two years in office—the lowest number since President Truman was in office—leaving many empty seats. The 2013 rule change did not apply to Supreme Court—and of course, four years later, the Republicans did the same as the Democrats had years earlier in using the Nuclear Option to confirm Judge Gorsuch.

At any rate, the minority party now has absolutely no check on the majority party for any judicial nominations, meaning that with control of Congress, the Republican party can—and has been—pushing through Trump nominations for the Federal Judiciary as quickly as they would like.

Federal judges have lifetime appointments. While certainly the most famous, the Supreme Court typically only hears about one hundred cases a year. The other 60,000 cases heard annually at the federal level go through the Appeals and District Courts. The Appeals Courts in particular have demonstrated their power in the past year with their decisions on President Trump’s travel ban and transgender military ban.

What’s at stake? As Savage put it, if the Democrats take back the Senate and do the same thing as the Republicans are doing now, the federal judiciary will “look just like Congress.” He remarked, “If we get to a federal bench that is more and more polarized, the myth of the rule of law being above partisan politics will erode. And with it, respect for the legal system as a legitimate way of resolving disputes… This will have consequences we are only beginning to think about.”

What’s more, Trump’s picks are wildly white and male. Political scientists Rorie Spill Solberg and Eric N. Waltenburg wrote recently for the Washington Post about the ramifications of this lack of diversity, which could negatively impact the public’s perceived legitimacy of judges that are not demographically representative of the U.S. population.

So what can the American populous do? Though senators possess the power to confirm Trump’s judicial nominees, with the 2018 midterm elections on the horizon, constituent input—particularly with senators serving on the Senate Judiciary Committee—could make a difference. To keep up with the quick nomination pace, the American Constitution Society for Law and Policy tracks judicial vacancies, nominations, and appointments at the federal level.You can always contact your representatives to tell them what you think.

Finally, while much power is concentrated at the federal level, the polarization currently threatening the federal bench hasn't necessarily extended to the state level courts. The fifty states all have their own system of State Trial Courts, State Appeals Courts, and State Supreme Courts, which can also ultimately feed cases to the federal Supreme Court. And it's only at the state level that the judicial appointment process varies, with the majority of states using some sort of election rather than nomination process. Most state judiciaries allow for voter accountability as well, with all but four states imposing term limits on their judges. To learn more before the next election, the National Center for State Courts has consolidated information on each state’s judicial selection processes.