Washington Wednesday: Judicial appointments

NICK EICHER, HOST: It’s Wednesday, the 2nd of January, 2019. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. First up today, Washington Wednesday!

The new Congress convenes tomorrow, and as you’d expect, some things will change, some things will not.

Democrats gained a majority in the House of Representatives as a result of the midterm elections.

In the Senate, Republicans padded their slim majority. They had a net gain of two seats and will have a 53-47 advantage.

EICHER: That’s an important margin—because it’s the Senate that confirms or rejects nominees to the federal courts.

During the 2016 election, then-candidate Donald Trump made judicial appointments a cornerstone of his campaign:

TRUMP: I am going to appoint justices of the United States Supreme Court who will uphold our laws and our Constitution. [cheers] This will be one of the most important issues decided by this election.

EICHER: Exit polls confirmed the point. Many voters who filled in the little black circle in favor of Trump wanted him to decide an immediate question: Who should fill the Supreme Court seat left vacant by Justice Antonin Scalia?

REICHARD: The eventual answer: Neil Gorsuch. Last year, Judge Brett Kavanaugh joined him—despite a bitter confirmation battle:

KAVANAUGH: This confirmation process has become a national disgrace. The Constitution gives the Senate an important role in the confirmation process. But you have replaced advice and consent with search and destroy.

REICHARD: While those two Supreme Court appointments have dominated news coverage, they’re only a tiny fraction of the overall strategy to remake the judiciary.  

Here’s a bit of government 101: The United States has a dual court system, state and federal.

The president fills the federal courts: Justices to the Supreme Court, and judges to the lower courts — the U.S. Court of Appeals, Circuit Courts, the U.S. District Courts, and special courts such as the Bankruptcy and Territorial Courts.

EICHER: The vast majority of the nation’s legal disputes get resolved in those lower courts. More than 99 percent of them. So those judges have huge influence, and lasting influence. They have lifetime appointments.

And President Trump has followed through on his vow to appoint textualists. That is, those who interpret the Constitution according to author intent and tradition, and not as a so-called living document.

REICHARD: Joan Larsen is one example of that. She’s a former Scalia clerk who now sits on the 6th Circuit Court of Appeals.

LARSEN: The one simple and clear rule that he taught us was that the law governs, not personal interest, not personal outcome, not personal preference.

REICHARD: Despite the partisan rancor in Washington these days, President Trump has put more judges on the federal bench in his first two years in office than any president in modern history.

EICHER: The Senate confirmed 85 appointees to the federal courts in 2017 and 2018. Compare that to President Obama’s first two years: 62 appointees confirmed, including two Supreme Court justices.

Still, judicial vacancies are high: at least 120 judges aren’t on the job. That’s twice as many as under Presidents Bill Clinton or George W. Bush. And it’s even more than two years ago.

REICHARD: Dozens of nominations are currently pending in the Senate. So for some perspective on the situation, I called up Carrie Severino. She’s chief counsel at the Judicial Crisis Network, which has been involved in the vetting and nominating process. I asked her what’s the lay of the land over these past two years of the Trump administration.

CARRIE SEVERINO: When he came into office, out of all of the lower court judges, he had very high numbers of vacancies. Out of eight or 900 judges there were about 120 vacancies when he took office. That is higher than four of his five predecessors. In the past year he’s made records, in fact with how many appellate judges he has put into office.

However, overall on judicial confirmations the Democrats have been successful, unfortunately, using all sorts of procedural gimmicks to slow down the process in the Senate. But I’m hoping in this New Year and now that we have, you know, maybe one or two more senators there that can help on some of these judges and who aren’t going to be playing politics with some, like Democrats have been, that we’ll be able to get more of those judges confirmed. Because you have some really excellent judges, men and women who had been waiting for a vote for over a year now. And that’s, that’s unconscionable. That’s ridiculous.

REICHARD: What about those who say turnabout is fair play?  Republicans didn’t schedule a hearing for President Obama’s nominee, Merrick Garland.

SEVERINO: Well look, they, they have seen one or two judges that were, that were blocked by the Republicans. They, in the process, Republicans were slowing down some of the D.C. circuit appointments. So they got rid of the filibuster.

So the Democrats were quite successful at saying, hey, you know, if you’re, if you’re gonna get the same scrutiny to judges that the Democrats had given, if Republicans are playing by those same rules, the Democrats just changed the rules and got rid of them. So what we’re seeing here now is they’re, yet again, inventing new ways to block judges. They’re doing things that the Republicans never did.

So, for example, some of these procedural votes that required, which used to be something you would require for a very controversial nominee, where there was a lot of debate, it means that they’re spending up to 30 hours of added debate at the end of a nomination on each judge. And that’s something that the Republicans only would do for actually controversial nominees. And that’s historically how those tools have been used. Democrats have done it for virtually every single nominee.

REICHARD: I want to ask you about the United States Court of Appeals for the 9th Circuit, the one based in San Francisco. The one that seems to block President Trump at every turn. Granted the Supreme Court often overrules that court, but many point to the 9th Circuit as evidence of a politicized judiciary. Do you think President Trump could change even that court?

SEVERINO: You know, I was amazed looking at the numbers. He actually could make a real impact in the 9th Circuit. If you’ve got a solid, even solid minority of judges who are calling us back to: here’s what the law says. Here’s the first principle.

So most cases in the appellate courts are actually heard by just a random subset of three judges. There’s a, there’s a really good chance that you’re going to get judges on some of those panels then that are going to be faithful, they’re not going to be so creative with their legal responses. And over time that can have a really significant impact.

REICHARD: Okay, that’s the 9th Circuit. What about the other 12? What impact could President Trump and a Republican Senate have elsewhere?

SEVERINO: Oh. So I think that shifts over time here. So the 9th Circuit obviously is probably one of the most liberal. But then there’s also places like the 4th Circuit which used to be considered very conservative under Obama. He made a significant inroads there and now it’s quite liberal. Same thing with the D.C. Circuit in Washington, D.C, as well. Um, the 1st and 2nd Circuit in the northeast are also considered relatively liberal.

However, you know, you’ve got the 5th Circuit that’s got, kind of Texas and Louisiana and that southern area, that circuit. The 11th Circuit which is more Florida, Georgia. That’s all of those southern circuits. Those have a very, have very solid majorities. The 6th Circuit, we’ve had some great nominees. To the 7th Circuit as well, those are up in the Midwest. So, and the 8th Circuit as well. So in the, in the middle of the country.

So I think you’ve got some ways it tracks some of the, you know, the coasts are more liberal and then the, the broad swath of the center of the country tends to be, uh, more conservative both politically and then judicially, which is a different thing. But I think that’s the important thing for our purposes.

REICHARD: Carrie Severino, chief counsel and policy director for the Judicial Crisis Network. Thank you so much, Carrie, appreciate your time today.

SEVERINO: No problem. Have a great day.

(AP Photo/J. David Ake, File) In this Oct. 5, 2018, file photo, the U. S. Supreme Court building stands quietly before dawn in Washington. 

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