One of the most transformative years in
the federal judiciary began with uncertainty and ends on a political
high note for President Trump.
The White House, after winning confirmation for Neil Gorsuch to fill the
Supreme Court seat held by the late conservative icon Antonin Scalia,
has moved with record speed to fill vacancies on the lower federal
courts – a surefire way for a president to help cement his legacy.
As of mid-December, 19 of Trump's 66 total
nominees this year have been confirmed by the Senate.
By comparison, then-President Barack Obama had made only 26 choices –
including Justice Sonia Sotomayor – half of whom were confirmed by
The impact under Trump is especially being felt on the appellate level,
which could act as insurance of sorts if those judges are more inclined
to support his policies as they face legal challenge across the country.
"The importance of this dramatic
reshaping of the entire federal court system cannot be overstated," said
former House Speaker Newt Gingrich, a Fox News contributor. "While it is
easy to focus on the U.S. Supreme Court, lower and appellate court
judges will make decisions that impact ordinary Americans on a daily
basis for decades to come."
It has not been all smooth for the Trump team. Three nominees were
withdrawn by the White House in recent days after questions were raised
about their record and temperament. In a confirmation hearing that
essentially went viral, then-nominee Matthew Petersen stumbled
repeatedly under questioning as he acknowledged not knowing basic trial
court terminology, essential if he were to be a trial judge, say legal
Yet, with 143 current vacancies -- almost half of them considered
"judicial emergencies" with shorthanded courts and heavy caseloads --
more opportunities await the new president in the new year.
ANOTHER SUPREME DECISION?
Of those opportunities could be another early-term Supreme Court
With the unusually influential help of outside advisers, Trump made an
immediate impact on the country just 11 days after taking office in
2017, choosing Justice Gorsuch to fill Scalia’s Supreme Court seat. The
50-year-old Colorado native -- and youngest justice -- quickly displayed
that promised "reliable" conservative record.
Now, White House aides are quietly hopeful they might soon get another
chance to move the shaky conservative majority on the bench solidly to
With addition of Amy Barrett, Britt Grant, Brett Kavanaugh, Kevin Newsom
and Patrick Wyrick, the president's list now totals 25 names.Video
Trump adds names to list of potential Supreme Court nominees
"If a vacancy should arise again, this White House is going to be ready
to go. They already have a working list of candidates to fill a seat.
They've been through the process once before," said Thomas Dupree, a
former top Bush Justice Department official and now an appellate
attorney. "So I would say, take the Gorsuch model, and do it again."
Trump might get the chance as early as spring, when retirement
announcements from the high court are typically made. Justice Anthony
Kennedy -- a moderate-conservative and powerful deciding vote on so many
hot-button issues -- tantalized Washington last summer, amid unfounded
rumors he would step aside after three decades. The tight-lipped
81-year-old senior associate justice still has given no public
indication he is ready to go.
TRUMP ADDS 5 NAMES TO SCOTUS NOMINEE LIST
But Trump already has a list. When Gorsuch was selected, he was among a
list of 21 names then-candidate Trump promised he would rely on
exclusively to complete the high court. The list of possibles has since
expanded to 25, with the latest four added in November.
'The importance of this dramatic reshaping
of the entire federal court system cannot be overstated.'
- former House Speaker Newt Gingrich
Among those newly added was Judge Brett
Kavanaugh, who sits on the same high-profile D.C. appeals court as
Merrick Garland – the Obama pick stalled and sidelined by Republicans.
Three current justices (and Scalia) came from that appeals bench.
Government sources and court watchers say the 52-year-old Kavanaugh, a
former law clerk for Kennedy, would be among those seriously considered
for any near-term Supreme Court vacancy.
Also in the mix:
Judge Amul Thapar, 48, on the Cincinnati-based 6th Circuit federal
appeals court. While still a district court judge, Thapar was
interviewed in January by the president for the Scalia seat, and would
become the first Asian-American Supreme Court justice.
Judge Thomas Hardiman of the
Philadelphia-based 3rd Circuit federal appeals court. The 52-year-old
Pittsburgh native was the remaining finalist for the seat Gorsuch now
Judge Joan Larsen, also of the 6th
Circuit, also was a former law clerk for Scalia, speaking at his
memorial service. Some sources say Larsen, who turns 49 this month and
served on Michigan's high court, may need some more federal bench
experience before ever reaching the high court.
Judge Diane Sykes of the Chicago-based
7th Circuit appeals court, has long been a favorite of conservatives,
having been considered for the high court in the Bush years. She too was
a Trump high court finalist, but her age -- she turns 60 this month --
may be a factor for a president seeking a justice with a potentially
In a letter, dozens of House
Republicans are asking the Justice remove herself from the bench citing
her public criticisms of then candidate Trump
The planning, of course, all presumes a
new vacancy will occur in Trump's first term. Justice Ruth Bader
Ginsburg, at 84 the oldest member of the court, has privately indicated
she has no intention of leaving. Kennedy too may decide to stay for
another year at least.
"He is aware, as we all are, that Trump promised to put justices on the
court who would overturn Roe v. Wade, who would perhaps undermine equal
rights for gays and lesbians," said Elizabeth Wydra, president of the
Constitutional Accountability Center. "So he is not going to be eager to
throw that legacy away. The best steward of Justice Kennedy's legacy is
Justice Kennedy, and that will give him an impetus to stay on the
Conservative activists concede having Kennedy on the bench creates a
measure of uncertainty into the new year, concerning whether many of the
president's legislative priorities will survive judicial scrutiny.
The so-called "travel ban" cases are working their way through the
appeals process and could reach the justices this spring. The third
version of Trump's immigration and visitor policies includes a ban on
travel into the U.S. from six mostly Muslim countries. The case could be
major test of executive authority over foreign policy and immigration.
Other pending court challenges where Republicans on Capitol Hill and the
White House could face court setbacks include gun control,
gerrymandering, religious freedom, abortion, transgender servicemembers
in the military, and the war on terror.
But those issues may have a harder time
reaching the justices if the various lower courts speak with one voice
on such hot-button disputes. Since the Supreme Court is a purely
discretionary body -- taking only those cases it wants to resolve, and
typically only when there are differing legal interpretations in the
lower courts -- many issues remain on the judicial back burner.
That, legal experts say, puts a priority on Trump ensuring the 874
federal judgeships with lifetime tenure remain mostly right-leaning. And
they have so far, with the Senate's help. Gone is the 60-vote,
filibuster-proof threshold required to confirm judicial candidates.
Gorsuch benefitted from a simple 51-vote majority to earn his seat,
after rule changes engineered by Senate Majority Leader Mitch McConnell,
Many advocacy groups on the left remain frustrated.
“The judicial nominations process is spinning out of control under the
Trump administration," said Nan Aron, president and founder of the
Alliance for Justice. "It is disgraceful that in their stampede to rush
through as many judicial nominees as possible, Republican partisans on
the Judiciary Committee continue to trample basic standards for
nominees, longstanding Senate practice and their own Democratic
Trump has given credit for his third branch successes to several mostly
obscure conservative legal minds, who provided outside resources and
advice during the Gorsuch selection and confirmation drama. That
includes Leonard Leo, who took a leave of absence from the Federalist
Society to be the president's private point man on all things judges. He
says Trump would be ready if given another chance to burnish his legacy.
"I think it's important the president and the Republican Party continue
to pick individuals to the Supreme Court who are really committed to the
ideals that Justice Scalia stood for. Those play well with the American
people, those are the right ideals for moving the court forward, and
that worked" with the Gorsuch confirmation, Leo told Fox News.
When it comes to the selection process, "The president is very
entrepreneurial, he's always open to new ideas. But I think the Gorsuch
nomination tells you everything you need to know about what he's looking
for, and that I don't think will change at all."