Washington Wednesday – Reshaping the judiciary

MARY REICHARD, HOST: It’s Wednesday the 27th of May, 2020. You’re listening to The World and Everything in It and we’re so glad you are!  Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. First up: Washington Wednesday.

Back in 2016, then-candidate Trump made a top campaign issue out of the question, who would replace Justice Antonin Scalia on the Supreme Court? Scalia had died unexpectedly and the question of naming his successor helped propel Trump to the White House.

More than half of those who voted Trump listed the Supreme Court as the “most important factor” in their decision. And as it turned out, the president ended up with two high court vacancies to fill in quick succession.

REICHARD: The new justices have already had an effect on American law. But the Supreme Court is only the tip of the iceberg. 

When President Trump took office, he inherited 103 appellate vacancies. That was nearly double the number President Obama inherited when he took office.

But now Trump appointees make up nearly one-third of judges on the U.S. Court of Appeals. Those are the courts directly below the Supreme Court—and the ones that decide the vast majority of cases.

EICHER: Joining us now to talk about all of this is Leonard Leo. He’s co-chairman of the Federalist Society and one of President Trump’s principal advisers on judicial nominees. Mr. Leo, good morning!

LEONARD LEO, GUEST: Good morning!

EICHER: Well, we noted a few moments ago, most people probably think of the Supreme Court when they think of what a president is capable of doing to try to shape the judiciary. But most of the time cases don’t make it that high, and lower federal courts end up with the final say. So those courts, of course, are crucial, too.

We mentioned 103 appellate vacancies when President Trump took office. How many are left at this point?

LEO: Only two. There are only two vacancies left on the appeals courts.

EICHER: Just two so let’s look at one appellate court in particular—one of them known from recent years as the most liberal in the country, the 9th Circuit, based in San Francisco. Even that court is changing, and it’s made a big difference in some recent cases. Could you talk a bit about that?

LEO: Sure. President Trump hasn’t appointed a majority of the 9th Circuit Court of Appeals, which is based out in California in the Pacific Northwest. But he has appointed enough judges on that court that you’re seeing a greater number of panels now that have two out of three judges who are relatively conservative in their jurisprudential outlook and that is making a difference in terms of the outcomes of a number of cases. 

We’ve even had one en banc decision that reversed a liberal panel ruling below. So it’s a court that’s in a bit of flux. It’s still five or, I think, six shy of having a conservative majority, so that doesn’t exist. But certainly there are a greater number of conservative leaning panels of three judges and a greater number of dissenting opinions by conservatives that are getting noticed by members of the U.S. Supreme Court when people petition for review up there.

EICHER: Now, just to explain, when you say en banc you mean the entire bench, the whole court of judges instead of, what, a three-judge panel?

LEO: Yeah. In most circuits, en banc means the entire circuit court. In the 9th Circuit it means, I think, half or thereabouts. But, yes, a larger sort of super panel of jurists, yes.

EICHER: Let’s stay at the appellate level. Have you seen similar shifts in other circuits, not just the 9th?

LEO: Yes. You’ve seen some ideological shifts in other circuits as well. You’ve seen it in the 3rd Circuit. You’ve seen it in the 6th Circuit, the 7th Circuit, the 8th Circuit, the 11th Circuit. So, there have been a number of other circuits where you have seen a shift in the balance of the appellate courts.

EICHER: It’s really remarkable all the change in just three years. So let’s move from the appellate level, which is just one step below the Supreme Court, to the district courts. This is where cases involving federal law begin. The Senate so far has confirmed 138 Trump nominees to the district courts. 74 vacancies—if my math is right—remaining.

But I understand that it’s likely most of those will not be filled before the November election because of something known as the “blue slip process” in the Senate. Could you explain a bit about that and why it’s starting to slow the appointment process there?

LEO: Sure. First of all, the numbers are a little bit better than that. I think it’s around 50 remaining U.S. District Court judges, if you just count article three courts. But it’s in that general neighborhood. 

And what you’re seeing right now is a slow down because with district courts, unlike the circuit courts we just talked about, senators have the ability to block a nominee from moving forward by basically returning what’s called a negative blue slip, saying that you’re not inclined—as senator you’re not inclined to have that individual move forward. So, what that basically means is the judge is not going to get—the judicial nominee is not going to get an up or down vote in the Senate. 

This is, of course, a problem in what we call double blue states. States where you have two Democrat senators and they just refuse to sign off on a nominee going forward. And so that’s what we’re seeing. We’re seeing that as we wend our way to a conclusion of getting judges confirmed and filling all these vacancies that existed and some new ones, what’s left over are mostly vacancies or nominees from double blue Democrat states and those are the ones that are just not moving at this point.

EICHER: Now, I understand there’s some debate about whether the time is right for some of the older conservative judges to retire so that President Trump gets a chance to replace them with younger appointees—extending his influence over the courts, potentially for decades beyond that. Anything to that?

LEO: It’s usually ill advised for White Houses and Senates to try to put pressure on judges to retire. Historically that has not worked well. It tends to get sitting judges backs up when they feel excessive pressure to retire. And so I don’t think that that’s a strategy that works particularly well. And it’s not a strategy to my knowledge that is currently being undertaken by this White House. 

All of these judges know that there are opportunities for senior service and I think that they just have to independently make those determinations on their own. As the numbers show, quite a number of judges have already taken senior status or outright retired. I do think in a second term you’ll see a large number of additional judges taking senior status just because there’s a very large number of judges that are eligible for that, basically from going back to the Reagan and Bush 41 administrations and even some from the Clinton administration. 

So, I do think in a new presidential term you’ll see those numbers starting to creep up again. I don’t know that you’ll see very many the remainder of this year. Normally once you get to the halfway point in an actual election—so June and later—most judges won’t go senior or retire unless there’s some dire need to do so—health reason or something like that.

EICHER: Now, before I let you go, I’d like to take a step even further down the judicial ladder, so to speak, and talk just for a minute about what effect shaping the judiciary has had, or is having, on law students and young lawyers. Are you seeing down in the law schools a little more interest in limited government and originalism?

LEO: Oh, yes, without question. When you have a sizable number of jurists or judges who embrace textualism, originalism, enforcement of the separation of powers, federalism, and other structural constitutional provisions, when you see judges who are really role models for young lawyers and law students embracing those principles with greater frequency and fervor, it has an enormous impact on those law students and young lawyers because it provides legitimacy and credibility to those ideals and principles in a way where when you have a judiciary as devoid of those it’s just a greater challenge to get people to embrace them. So, it’s had an enormous impact that started all the way back in the Reagan era, but it continues to have an enormous impact. 

And this crop of judges that the president has very wisely and courageously nominated and appointed, these are young, very smart jurists and they are extremely valuable role models. So, not only has the president showed great foresight in helping to create a judiciary that for at least two generations is going to be transformative jurisprudentially, but he’s also created, I think, a culture or a climate in the law that is going to help to cultivate a whole new generation or two of law students and young lawyers who are going to embrace these principles. That’s a great side benefit to the president’s very thoughtful and strategic agenda.

EICHER: Leonard Leo is an adviser to President Trump and co-chairman of the Federalist Society. It’s an organization dedicated to the philosophy of limited government and an originalist interpretation of the Constitution. Mr. Leo, thank you so much for joining us today!

LEO: Thank you very much.

(Jonathan Ernst/Pool Photo via AP) Sen. John Kennedy, R-La., sits between two robotic television cameras and surrounded by empty seats during a Senate Judiciary Committee confirmation hearing on the nomination of Judge Justin Walker to be a U.S. Circuit Court judge for the District of Columbia Circuit on Capitol Hill in Washington, Wednesday, May 6, 2020. 

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