Trump Faces Challenge Of Filling Over 100 Federal Court Vacancies

In addition to filling a seat at the Supreme Court, President Trump has more than 120 vacant federal court judgeships. A large number of them carried over from the Senate refusing to approve President Obama's nominees. NPR's Audie Cornish talks with Brookings Institution visiting scholar Russell Wheeler about how Trump may shape the judiciary for years to come.

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While this one Supreme Court vacancy is getting most of the attention, there are scores of other job openings in the federal court system. More than 120 judges are needed at U.S. district and appeals courts across the country. And despite having to get his picks passed a Republican Senate, President Obama was able to install 329 judges during his two terms. Here to talk about how President Trump could influence the court system with his picks is Russell Wheeler He studies judicial vacancies at the Brookings Institution. Welcome to the program.

RUSSELL WHEELER: Good to be with you.

CORNISH: So roughly 14 percent of the federal judgeships are vacant right now. And then other judges could retire in the next couple of years. So what sort of opportunity does President Trump have here?

WHEELER: I think he has a pretty substantial opportunity. We don't have to go into all the numbers. You calculate how many judges are eligible to retire. And there's plenty on the bench now that are eligible to step aside if they want to. And other things happen as well. There'll be a vacancy we expect on the 10th Circuit Court of Appeals before too long, Judge Gorsuch. So I ran the numbers a couple of months ago. And I think he has the potential at the end of four years to have a majority of Republican appointees on both the district courts and the court of appeals.

CORNISH: So why are these lower court appointments so important?

WHEELER: Well, it's where the bulk of federal judicial business gets done. With the Supreme Court deciding 75, 80 cases a year, it makes the court of appeals for most litigants the court of last resort.

CORNISH: So as you look out at all the current openings at these various courts, do you get a sense that a Trump nominee could swing a potentially liberal-leaning court to the right?

WHEELER: The most - to use your term liberal-leaning court is probably the Court of Appeals for the 9th Circuit. It's always the object of a lot of attacks from conservatives. It's pretty solidly Democratic appointees. So I don't think you could slip that. The 8th Circuit Court of Appeals is in somewhat the same position. But other courts of appeals, if they don't have Republican appointee majorities, they have only slim Democratic appointee majorities. And those he could turn.

CORNISH: So just because a president has a high number of appointees, does that translate into long-term influence on the judiciary? And what are sort of the obstacles to that?

WHEELER: It has long-term influence. But that's a good question because we're talking here about active judges, judges in active status on the courts of appeals and the party of the president who appointed them. But almost all the decisions of the court of appeals are made by three-judge panels which are randomly drawn. So you can have a court with a strong majority of Democratic or Republican appointees. But the random draw of three judges may not necessarily yield that same balance. Over the long run, obviously, it's going to make a difference.

And the other thing to keep in mind is that while the party of appointing president helps predict decisions of judges, it's far from a sure predictor. So you can know the party who appointed the judge but that doesn't tell you for sure how the judge is going to rule in any particular case. It's much more complex than just a mechanical application of these numbers.

CORNISH: We should remind people that a few years ago, the Senate actually did away with the filibuster when it comes to lower court nominees.

WHEELER: Right.

CORNISH: So now with a Republican majority, does that mean smooth sailing for a Republican president?

WHEELER: Senator Grassley has said that he will continue to honor what's called the blue slip rule.

CORNISH: And this is Chuck Grassley, who's head of the Senate Judiciary Committee.

WHEELER: Yeah. The judiciary chair sends out a actual blue slip to the home state senators and says please return this indicating your approval of the nominee with the understanding that the nominee will not progress if the blue slips aren't returned. So there is Democratic senators in I think 30 of the 50 states. That will obviously limit the ability of President Trump to put solid Republican appointees on the bench.

CORNISH: Russell Wheeler is a visiting fellow in governance studies at the Brookings Institution. Thank you so much.

WHEELER: Good to speak with you.

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KELLY MCEVERS, HOST:

And tomorrow on NPR, we will hear from the chairman of the judiciary committee. That would be Chuck Grassley, Republican of Iowa. He'll talk to our colleagues on MORNING EDITION. We're expecting more on Judge Gorsuch and maybe something about Senator Grassley's masterful use of Twitter. So tune in tomorrow to Morning Edition.

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