President Donald Trump’s appointment of federal judges at a record pace may endear him to conservatives, but that alone won’t be enough to push the judiciary to the right.
A big obstacle is Barack Obama’s legacy of stacking the courts with his own lifetime appointees. When Obama took office in 2009, Democratic appointees made up the majority of active-status judges on just one of the nation’s 12 regional appeals courts. Even if Trump fills all the currently vacant seats on the appeals courts, judges appointed by Republicans still won’t hold a majority on eight of them.
That gives the Democratic appointees more sway when those courts exercise their rarely used but important power to convene all of their judges in en banc panels of as many as 16 jurists to hear cases of exceptional public interest. The losing side can always seek Supreme Court review, but en banc rulings are often the final word on major matters of civil and criminal justice.
“For many cases heard en banc, these majorities can determine outcomes on novel or publicly important legal issues,” said Anne Joseph O’Connell, a law professor at the University of California, Berkeley, who specializes in federal staffing.
In the last 18 months, en banc rulings in circuits dominated by Democratic appointees handed significant losses to the National Rifle Association on concealed gun permits and an assault weapons ban. Another one affirmed the right of pregnant teenagers in immigration custody to get abortions over the objections of Trump’s health department.
Trump, of course, is still just getting started as he hurries to fill 143 judicial vacancies, 15 of which are to appeals panels, while Obama had eight years to shape the courts. But to achieve a Republican takeover of the appellate courts, Trump will have to wait for Democrat-appointed judges to retire or die. Of 164 active appeals judges, 22 are older than 75.
“Most critically, he needs more vacancies at the appellate level, and judges — particularly those nominated by President Jimmy Carter and President Bill Clinton — may not want to retire during this administration,” O’Connell said.
To be sure, the judicial philosophies and political leanings of judges don’t always align with the party of the presidents who appoint them. In April, the Republican-heavy circuit court based in Chicago, on an 8-3 en banc vote, became the first in the nation to rule that the 1964 Civil Rights Act prohibits discrimination based on sexual orientation.
Now, the Trump administration is urging an en banc panel of the Democrat-dominated circuit court in New York to rule the opposite way in a case brought by a skydiving instructor who claims he was fired because he’s gay.
In other pending en banc cases:
The Democrat-leaning circuit court for the District of Columbia will decide on a constitutional attack on the structure of the Consumer Financial Protection Bureau, an agency launched by Obama and loathed by many Republicans. The same court is also considering a challenge by more than two dozen states to Obama’s Clean Power Plan, but the case is on hold and may ultimately be rendered moot as Trump moves to abandons the policy initiative wholesale. The Richmond, Virginia-based circuit court is expected soon to rule on whether to block the third version of Trump’s travel ban aimed at a group of mostly Muslim nations. The Richmond court struck down the second version in a May.
Apart from the occasional en banc hearing, Trump’s judges will have a far greater impact on hundreds of cases each year that they will handle solo in the trial courts or as members of three-judge panels in the appeals courts.
While some presidents strive to name moderate judges, Trump is outspoken in his desire for a rightward shift. In a Nov. 1 tweet, he thanked the GOP-controlled Senate for holding confirmation hearings for “high-quality Federal District and Appeals Court Judges at a record clip! Our courts are rapidly changing for the better!”