President Trump's conservative court shift may slow down as liberal judges avoid retirement

Richard Wolf | USA TODAY

WASHINGTON – President Donald Trump's record pace at filling federal appeals court vacancies over the past two years may be approaching a slowdown.

Since taking office 22 months ago, Trump has named 29 conservative judges to federal circuit courts, the regional appeals courts that handle more than 50,000 cases a year. The Supreme Court, by comparison, hears about 70.

The president's success, in addition to Senate confirmation of Supreme Court Justices Neil Gorsuch and Brett Kavanaugh, has been heralded by conservatives as his crowning achievement. Senate Republican leader Mitch McConnell and former White House counsel Don McGahn, architects of the judicial agenda, were greeted with thunderous applause last week at the Federalist Society's annual convention here.

In Trump's third year in office, he is likely to have fewer positions to fill because he has already named judges for many of the vacancies he inherited from President Barack Obama.

Like Supreme Court Associate Justice Ruth Bader Ginsburg, appeals court judges named by Democratic presidents have an incentive to keep their lifetime appointments while Trump is in office.

“So many vacancies have been filled on the courts of appeals that there just aren’t that many left now,” says Ed Whelan, president of the conservative Ethics and Public Policy Center.

As his first two years in office draw to a close, Trump has nominated 154 federal judges, more than any of his five most recent predecessors. Eighty-four of them have been confirmed, including 53 to federal district courts.

The president is enthusiastic about his chances to boost those numbers because the Senate will have at least 52, and possibly 53, Republicans in the next Congress, up from 51.

"That means all the judges that I'm getting approved will now be easier," he said Saturday before leaving to view fire damage in California. "That's a tremendous difference."

'Fundamental shift'

At the critical appeals court level, Trump has replaced 19 judges named by Republican presidents and 10 named by Democrats. He has yet to tip the balance in any of the 12 regional courts, but two are close.

The U.S. Court of Appeals for the 11th Circuit, with jurisdiction for Florida, Georgia and Alabama, has gone from a solid majority of judges named by Democrats to a 6-6 tie.

The U.S. Court of Appeals for the 3rd Circuit, which oversees Pennsylvania, New Jersey, Delaware and the Virgin Islands, is within one seat of being tied 7-7. Trump's nominee for the last vacancy there, Paul Matey, could be confirmed next month.

“There’s already been a fundamental shift in the composition of the judiciary, and it's only going to get worse in the next two years," said Brian Fallon, executive director of the liberal advocacy group Demand Justice.

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When "senior" judges are taken into consideration – those who have left active duty but continue to serve part-time on three-judge panels – both of those appeals courts have a majority of Republican-named judges. Three others are tied, including the powerful U.S. Court of Appeals for the District of Columbia Circuit.

Trump's impact, like those of past presidents, eventually could have a direct impact on issues such as affirmative action, gun control, religious freedom and government regulations.

“You’ve got judges who think that the entire administrative state is unconstitutional,” says Paul Gordon, senior legislative counsel at People for the American Way, which closely tracks judicial nominations.

While liberals are concerned about Trump's confirmed judges, conservatives are wary that the pace will slow. That could leave as many as seven appeals courts where Obama left them, with a majority of judges named either by him or President Bill Clinton. Four others are solidly in Republican hands.

'Flipping' circuits

The past three presidents all had success in "flipping" the federal judiciary from one political party's preference to the other, but it took their full eight years in office.

During their first two years, George W. Bush made the most nominations, but Clinton had the highest percentage of Senate confirmations. Obama lagged in both categories but managed to reverse Republican-nominated majorities in eight of the 12 federal appeals courts.

Though Clinton, Bush, Obama and Trump each put two justices on the Supreme Court, their under-the-radar nominations to federal appeals courts were equally, if not more, important.

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“For the vast majority of the American people, the final say in what the Constitution means, and whether they have a fair day in court, and whether their legal rights are properly enforced is up to those court of appeals judges,” said Daniel Goldberg, legal director at the liberal Alliance for Justice, which has opposed many of Trump's nominees.

Those judges generally work on randomly selected panels of three, often including senior judges on their path to retirement. Those panels can tilt left or right regardless of a full court's composition. Only active judges participate when a full appeals court agrees to decide a case.

About 60 of the nation's 150-plus active appeals court judges are eligible for retirement or senior status, including half of those named by Democratic presidents. All five Democratic nominees on the GOP-dominated 6th Circuit appeals court are at least 65 years old. On the Democrat-dominated 9th Circuit appeals court based in California, nine of the 16 Democratic appointees could retire.

That isn't likely to happen any time soon. Curt Levey, president of the conservative Committee for Justice, says the Obama and Clinton judges "seem to be part of the resistance."

While Trump is president, Levey says, they may have an "even stronger temptation" to stay on as active judges.

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