As the Courts Go So Goes the Country – the Trump Effect

By all accounts President Trump hit the ground running when he officially was installed in office on January 20th of this year. He immediately repealed several of Obama’s worst policies through executive action (TPP, scaled back parts of Obamacare, Keystone and Dakota Pipelines, Sanctuary City funding, etc).

It’s hard to pinpoint which one of Trump’s achievements have been his best one so far, but certainly one to consider is his reshaping of the federal judiciary.

The President and his team didn’t waste any time when he entered office in overseeing Neil Gorsuch’s appointment to the Supreme Court. That was a rare opportunity when a new president had a Supreme Court vacancy already waiting on him when elected. In fact, the last president to have such was James Garfield in 1881.

The choice of Gorsuch could not have been better for the conservative cause. Since his appointment, Gorsuch has consistently cast conservative votes. That includes topics such as the separation of church and state, gun rights, and Trump’s travel ban.

One of the deciding factors for those sitting on the fence before the election was their hope Trump would appoint constitutionally oriented judges who would serve long past his tenure as president. There is no question that Barack Obama transformed the federal courts as he was able to name one-third of all judges presently sitting.

Even Republicans who oppose the President saw the need to stem the tide of liberal judges on the appellate and Supreme Court level. When Republicans gained control of the Senate in 2015 they made it their mission to hinder Obama’s nominations for the lower courts. That contributed to the large backlog of 107 vacancies on trial and intermediate appellate courts Trump inherited.

The result of gaining control of the Senate was that Trump has more court seats to fill that four of the last five presidents. Only President Bill Clinton had more initial vacancies, with 111. Obama had half that number and Trump’s starting batch of 107 represents 12 percent of all 890 federal judicial positions.

Now it’s Donald Trump’s turn to transform the courts. With more than 120 openings on the federal bench, the White House has just announced a slate of 11 new judicial nominees.

To date, the President has nominated 15 people to the lower courts. That list includes Stephanos Bibas, a law professor at the University of Pennsylvania and Professor Amy Coney Barrett of the University of Notre Dame. Barrett clerked at one time for Justice Scalia and was nominated for a seat on the Seventh Circuit in Chicago.

Other notable nominees are Allison H. Eid for the Tenth Circuit Court of Appeals and Ralph R. Erickson for the Eight Circuit Court of Appeals. Eid clerked for Justice Clarence Thomas and was a professor of law at the University of Colorado and now sits on the Colorado Supreme Court. Erickson is a district court judge in North Dakota who presided over the state’s first federal death penalty case.

The nomination of Damien Schiff to a seat on the United States Court of Federal Claims is probably overlooked by many and should not be. This little-known court hears claims by private interests against the federal government for monetary damages. Schiff’s nomination to the Court of Federal Claims promises the protection of private property rights against government infringement.

Noah Feldman, a liberal professor at Harvard Law School grudgingly admits that “these are better picks than one might have expected — maybe better than one could have hoped.” He attributes the quality of these early nominees to the administration’s having “outsourced judicial selection” to “elite conservative lawyers.”

Sen. Orrin Hatch (Rep-Utah), has called for swift action on the nominees.

“President Obama understood the singular importance of the lower courts, which is why he was so vigorous in appointing judges with a greater commitment to the liberal political agenda than to our Constitution,” said Hatch. “The time has come to right the wrongs of the previous administration … these supremely qualified jurists will restore respect and credibility to the judicial branch by saying what the law is—not what it ought to be.”

Even though the president’s term has just begun, the judges he puts on the bench may well be one of his most important and long-lasting legacies. This first slate of lower federal court nominees is a sizeable one but it is only the first. With 150 positions on the lower federal courts to fill, the White House can affect long-term change that will last long past Trump’s time in the oval office. This may very well end up being Trump’s legacy.

~ American Liberty Report