Donald Trump is poised to cement the conservative majority on the Supreme Court, but he will also play a critical role in reshaping the look of the lower courts as he moves to fill over 100 vacancies in the federal judiciary.
Experts say that the unusually high number of vacancies — due in part to judicial warfare between the Obama administration and the Republican-led Senate — could change the face of the courts.
“If President-elect Trump can put a different face on the Supreme Court and the Courts of Appeals he could substantially change the course of federal jurisprudence,” said Russell Wheeler of the Brookings Institution.
As things stand now, there are 103 vacancies in the appeals and district courts. The Administrative Office of the US Courts defines 38 of those as judicial “emergencies,” or those where vacancies have existed for an extended period of time in areas with a high number of filings.
For comparison, President Barack Obama had 59 vacancies when he took office.
A shift in the courts could impact hot-button issues such as abortion, gun control, environmental protection and transgender rights.
To be sure, the current vacancies include seats that had been held by judges who were originally nominated by Republican presidents. It’s also true that a nominee doesn’t always fulfill the vision of the person who places him on the bench. But the large number gives Trump and unusual opportunity to make his mark on the judiciary.
“Republicans in the 114th Senate confirmed an abnormally low number of judges creating an abnormally high number of vacancies for Trump to fill,” said Wheeler.
Although critics say that Obama was slow out of the gate in filling seats early in his tenure, by the end of his administration he had appointed 323 district and circuit court judges, according to Wheeler, slightly more than George W. Bush.
But he was also President when the Senate changed the rules. Frustrated by Republican efforts to block nominees, the Democrats triggered the so called “nuclear option, which allowed the President’s judicial and executive nominees to be confirmed with only 51 votes. Supreme Court nominees are exempt from the change and still subject to the 60-vote threshold.
Perhaps the impact of the rules change was most evident on the US Court of Appeals for the DC Circuit. After the “nuclear option” eliminating the Senate filibuster, Obama pushed through three more nominees on that court which is often called the “second most important court in the land” because it reviews actions by federal agencies.
“Republicans resisted filling vacant seats on the Court of Appeals, arguing that the court didn’t need the judges. That was the straw that broke the camel’s back and led the Democrats to change the filibuster rules and shortly thereafter the Senate confirmed three pending nominees,” said Wheeler.
Trump’s task will be complicated by the fact that Senate leaders usually honor a long-standing rule that home state senators of either party must approve a nominee before they process it.
