06.03.2020 0

Trump cements constitutionalist majorities on federal courts with help from GOP Senate

By Richard McCarty

During the pandemic, while Do-Nothing Democrats in the House live up to their name, the Republican majority in the Senate has been back at work confirming more of Trump’s judicial nominees to lifetime appointments.

Thanks to Senate Republicans, Trump has had more of his judicial nominees confirmed than any of his recent predecessors had at this point in their presidencies, and has kept his campaign promise to appoint conservatives to the Supreme Court, but that is just the beginning of the story.

Thus far, Trump has had 197 of his Article III judicial nominees confirmed; this equates to more than 22 percent of the Article III judgeships in the country. (Article III judges are those defined in Article III of the U.S. Constitution and have lifetime appointments.) At the current pace, there should be about 37 more judicial nominees approved by the end of Trump’s first term bringing the total to about 234, which is more than 26 percent of all Article III  judgeships.

If you have followed conservative politics for very long, you likely are aware of the importance of judicial appointments to Republican voters, but have you ever considered just how long such an appointment can last? To help put it into perspective, consider the following. The last serving judicial appointee of John F. Kennedy died less than two years ago after spending for more than 55 years on the bench. Lyndon Johnson’s last remaining judge on the bench stopped hearing cases earlier this year. President Ronald Reagan left office over 30 years ago, but well over 100 of his judges are still on the bench.

In addition to shifting the Supreme Court towards a constitutionalist majority, Trump and Senate Republicans have flipped three federal circuit courts of appeal from having a majority of judges nominated by a Democrat president to having a majority of judges nominated by a Republican president. One reason why circuit courts, which are just one rung beneath the Supreme Court, are so important is that they set precedents for their jurisdictions. Whatever these courts decide stands until the Supreme Court overrules them, or they decide to reverse their own decision. Because the Supreme Court only hears a small fraction of the cases decided by appeals courts, bad precedents can stand for years in liberal-dominated circuits.

The three circuits that Republicans flipped are the Second Circuit (which covers New York, Vermont, and Connecticut), the Third Circuit (which covers Pennsylvania, New Jersey, Delaware, and the Virgin Islands), and the Eleventh Circuit (which covers Georgia, Florida, and Alabama). About one-fourth of the U.S. population lives in these three circuits.

When Trump took office, only four of the 13 circuit courts of appeal had majorities of judges nominated by Republican presidents. Nine circuit courts had majorities nominated by Democrat presidents. Now, seven of the courts of appeal have Republican-nominated majorities, and six have Democrat-nominated majorities. Altogether, about 60 percent of the U.S. population currently lives in the jurisdiction of circuit courts with Republican-nominated majorities.

In addition, Trump and Senate Republicans have also brought near-parity to the Ninth Circuit Court of Appeals, which has long been a thorn in the side of conservatives. This court is very important because it is, by far, the largest circuit by population – approximately one-fifth of the US population lives in the Ninth Circuit, which covers Washington, Idaho, Montana, Oregon, California, Nevada, Arizona, Alaska, Hawaii, Guam, and the Northern Mariana Islands.

Because of the 10 Trump nominees confirmed to the court, the Ninth Circuit is no longer reliably liberal. Of the 29 active judges on the circuit, 16 were appointed by Clinton or Obama, and 13 were appointed by Republican presidents. Of the 19 judges who are still on the bench but have taken senior status (a form of semi-retirement), 11 were appointed by Republicans, and eight were appointed by Carter and Clinton.

To protect our Constitutional rights, it is crucial that we continue to repair the damage done by activist judges appointed by liberal presidents. That is why all conservatives, along with anyone who simply believes that the U.S. Constitution and laws should be interpreted as they were intended, should support President Trump and Republican candidates for US Senate this fall.

Richard McCarty is the Director of Research at Americans for Limited Government Foundation.

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