Election Day’s effect on the courts

While America remains riveted by the recent elections involving the first two branches of the federal government, the presidency and Congress, those results will meaningfully shape the third branch—the judiciary—potentially cementing conservative control for decades to come. With President-elect Donald Trump returning to the White House, Americans can expect a new generation of committed constitutionalists with lifetime appointments to the federal bench.

President-elect Trump made three excellent Supreme Court picks in his first term with Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. They have delivered significant wins for the conservative legal movement, starting with the Dobbs decision ending a national right to abortion and the Loper Bright decision ending deference to administrative agencies. Even still, Trump has grumbled privately that he wishes the justices had been more aggressive in some of their decisions, especially on the cases involving him personally.

That has led conservative lawyers to expect a new, “bolder” brand of judge under Trump 2.0. The center of gravity in the conservative legal movement continues to shift away from judicial restraint and toward judicial engagement. Judicial heroes of a prior generation like U.S. Circuit Chief Judges Jeff Sutton and Bill Pryor, both appointees of George W. Bush, are giving way to a new generation of conservative rock stars like U.S. Circuit Judges Andy Oldham, James Ho, Justin Walker, Amul Thapar, Britt Grant, and Kyle Stuart Duncan.

Any of those sitting appellate judges would make a fantastic replacement for Justices Clarence Thomas, who is 76, or Samuel Alito, 74. I expect both justices will retire in the next four years, perhaps even in the next two, given the solid Republican Senate majority coming out of the election. With 53 Republican senators, the White House will be empowered to go big on nominees now that pro-abortion GOP senators like Susan Collins of Maine and Lisa Murkowski of Alaska can no longer veto a floor vote.

President-elect Trump can have an even more immediate effect on the lower courts. Currently, there are 67 vacancies, primarily in U.S. District Courts. There are dozens of other federal judges who are eligible for retirement (36 on the circuit courts and another 73 on the District Courts), many of whom are appointees of Presidents Ronald Reagan, George H.W. Bush, and George W. Bush who were holding on until a conservative president was elected. They’ll now have that opportunity.

That’s especially true in light of changes to the “blue slip” during the first Trump presidency. The blue slip is the Senate Judiciary Committee tradition by which home-state senators were given a veto over nominees to courts in their states. Some senators traded seats with the White House (you can appoint two, but the third, you’ll appoint whomever I recommend), while others used bipartisan commissions to formulate a list of centrist nominees. Many senators used the blue slip to stop any nominees from President Trump in his first term, to the point where the Republican majority decided to ditch the tradition for circuit courts—they would no longer allow obstructionist Democrats to stop qualified nominees based solely on ideology.

As a result, the White House has incredible running room for the circuit courts, that intermediate appellate stage where many important decisions are made. (Because the Supreme Court hears fewer than 100 cases a year, the overwhelming majority of cases terminate at the circuit court.)

Two questions remain unresolved. First, who will drive the train on judicial nominations in Trump’s second term? In the first term, White House counsel Don McGahn is widely credited for his creative and committed stewardship of the judicial appointments process. In other administrations, that responsibility has rested primarily on the attorney general, while others outsourced it to the Senate. Second, will the White House make it a priority? The Biden White House never prioritized judicial nominations, especially in the lower courts, which is partially why Trump will inherit so many vacancies.

Conservatives should hope that one of our own is in charge (highly likely). The president knows personally the importance of good judges and knows the credit he gets with conservative voters for his appointments from his first term. They are an important part of his legacy already, and that should motivate him to continue to deliver. As a result, the Republicans’ strong string of victories on Nov. 5 will resonate in the judiciary for decades to come.