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01/07/2018

Ilya Shapiro & Aaron Barnes on President Trump's Lower Court Nominations
Michael Ramsey

At NRO, Ilya Shapiro & J. Aaron Barnes: Making Circuits Courts Appealing Again.  From the introduction:

Even beyond passing tax reform, slashing federal regulations, and pruning the federal bureaucracy, Donald Trump’s most impressive and lasting achievement so far is his record-setting pace of judicial appointments to the U.S. courts of appeals. While the Supreme Court gets attention for its blockbuster national cases, the 13 federal circuit courts represent the end of the line for all but 70 or so of the more than 50,000 cases they decide annually. Judges sit on those appellate benches for life, affecting our law long after the White House has changed hands.

After eclipsing the previous first-year records set by Presidents Kennedy and Nixon with 12 appellate judges confirmed in 2017, what are the prospects for continuing this momentum and increasing Trump’s judicial legacy?

Ultimately, the answer depends on two factors: (1) the number of open seats to fill and (2) the power to get preferred nominees confirmed. With regard to the latter, to paraphrase Yogi Berra, making predictions about control of the Senate is hard, particularly beyond this year’s elections. But engaging in a bit of informed speculation as to the number of seats that will be available for filling is less of a parlor game. The key consideration in forecasting such vacancies — beyond the 17 that currently exist, for which six nominees are pending — is the potential for judges to take advantage of what is known as senior status. This status is governed by the so-called Rule of 80: A federal judge who is at least 65 years old has the option of going into semi-retirement once the judge’s combined age and years on the bench add up to 80. So someone who was appointed before the age of 50 (as most of Trump’s nominees have been) can go senior immediately at 65.

The authors then undertake a circuit-by-circuit assessment.

RELATED, also at NRO:  Ed Whelan, Trump’s Stellar Judges. From the introduction:

Donald Trump deserves thunderous acclaim from conservatives for his outstanding record of judicial appointments during his first year as president. But his conspicuous successes should not obscure the many obstacles on the long path to genuine transformation of the federal judiciary. Those obstacles have seriously impeded judicial confirmations and threaten to continue to do so. But if they are cleared or eluded, and if Republicans retain control of the Senate after the 2018 elections, President Trump will be positioned to make a huge enduring impact on the courts during his first term.

Trump’s most important achievement on the judicial front in 2017 was his appointment of Supreme Court justice Neil Gorsuch to fill the vacancy left by Antonin Scalia’s death in February 2016. ...

In 2017, President Trump also appointed twelve federal appellate judges — a record for a president in his first year in office. (President Obama appointed three federal appellate judges in his first year and 55 over his eight years.) Beyond their number, Trump’s appellate appointees have, on the whole, outstanding credentials and are highly regarded in conservative legal circles. Indeed, six of the twelve have already earned their way onto Trump’s list of Supreme Court candidates. The twelve include three women — Amy Coney Barrett, a former Scalia clerk who was a professor of law at Notre Dame; Joan Larsen, also a former Scalia clerk and a Michigan supreme-court justice; and Allison Eid, who clerked for Justice Thomas and served on the Colorado supreme court for eleven years. They also include two Asian Americans, Amul Thapar, a Bush 43 appointee to a federal district-court judgeship, and James Ho, a distinguished appellate lawyer who was also a Thomas clerk.

An important question remains, mainly regarding the appellate judges: will they be originalist judges, or just "conservative" ones?  Justice Gorsuch seems committed to an originalist approach, but many of the President's appeals court nominees are less certain, either because they have not taken strongly originalist positions or have not previously served as judges, or both.  A group of committed originalists added to the courts of appeal would play an important role in shifting the legal culture toward originalism, but it seems premature to assume that will be the outcome. The early decisions of the "Trump judges" will be important indicators.