(Bloomberg Businessweek) -- Donald Trump rapidly filled a swath of vacancies in the US judiciary in his first term, dramatically reshaping the federal bench with right-leaning judges. Now he has a chance to cement his influence, particularly over the appeals courts that rule on some of the most important and divisive issues in American society.
There are currently only two vacancies on those courts, known as circuits. But over the coming presidential term, out of 177 active circuit judges, 34 Republican-appointed and 29 Democratic-appointed appellate judges could retire, according to data gathered by Russell Wheeler, a nonresident senior fellow in the Brookings Institution’s Governance Studies program.
That should allow the president-elect to decisively shift the balance by replacing those who were appointed by Democrats, says Wheeler. “The judiciary is likely in for some turbulence.”
For Trump’s supporters, moving the judiciary further to the right would be the conclusion of an effort he began in 2017. “Judges are the most successful policy initiative of President Trump’s first term, and his reelection ensures his transformation of the federal courts,” says Rob Luther, a professor of law at George Mason University who worked in the first Trump administration co-managing judicial nominations.
To civil liberties organizations and many Americans who didn’t support Trump, however, the courts have been seen as a recourse against perceived corruption and attempts to undermine democracy, the Constitution and laws offering protections for the climate and at-risk groups. So they wouldn’t welcome his success in restocking the federal bench with conservative judges.
“Civil rights, civil liberties, reproductive freedom—all of these will be further endangered by additional Trump judges,” says Elliot Mincberg, a senior fellow at People For the American Way, a progressive advocacy group. More Trump-appointed judges at the appellate level means the trend of undermining administrative agencies is poised to continue, he says. “The Supreme Court sent a clear signal for lower courts to be more active in second-guessing what administrative agencies can do.”
Federal judges serve for life and tend to remain in their posts long after the president who nominated them leaves office, so their influence can be felt for decades.
The US’s appellate courts don’t get as much attention as the Supreme Court, but they act as the final word on thousands of cases—many with national significance—concerning financial regulations, antitrust disputes, reproductive rights and more.
Most important legal issues get resolved in the appeals courts, says David Driesen, a constitutional law professor at Syracuse University College of Law. “Control of those courts is very important.”
Only 10% of the more than 50,000 cases handled by the circuit courts are appealed to the country’s highest court, which accepts fewer than 100 cases each year for review. When a case doesn’t reach the Supreme Court, the decision at the appeals court level stands.
The US’s 94 district courts sit at the base of the federal judiciary and are divided into 12 geographic regions, each with its own higher circuit court. (The Court of Appeals for the Federal Circuit hears cases regardless of region.)
At the appellate level, a panel of three randomly selected judges hears arguments on why a party believes a lower court may have wrongly applied the law. Circuit courts with a greater number of judges appointed by a single party—Republican or Democratic—are more likely to draw panels dominated by that party.
Republican control of the Senate will work in Trump’s favor, as the upper chamber must approve any appointments. His ability to further alter the federal judiciary will depend on how many judges decide to retire when they become eligible and how many take senior status, which allows for a smaller caseload and still creates a vacancy.
Judges can retire or take senior status once they reach 65, as long as their age and years of service in the judiciary total at least 80. There are currently more than 100 with senior status, according to Wheeler, who says that some of those judges can still play an active role on panels, making it difficult to completely capture the impact of presidential appointments on circuits.
Trump could also deepen his impact on the Supreme Court, which he transformed with three appointments during his first term. A retirement by either Justice Clarence Thomas, 76, or Justice Samuel Alito, 74, both conservative, would give Trump a chance to extend his right-leaning hold on the high court decades into the future.
One specific court where he could make a big impact is the 5th Circuit in New Orleans, which has become a destination of choice for challenging policies on everything from abortion to immigration to federal agency powers.
In recent years, hedge funds and private equity firms have brought cases through the 5th Circuit challenging efforts by the US Securities and Exchange Commission to rein in the industry. In June the court struck down SEC rules that would have required the firms to detail quarterly fees and expenses to investors.
In his first term, Trump appointed half of the 12 Republican-appointed judges in the 5th Circuit, who serve alongside five Democratic-appointed judges. He may get a shot at shifting the balance more, with three Democratic-appointed judges and six Republican-appointed ones up for retirement or senior status over the term, according to Wheeler’s data.
Trump could also take another swing at the historically liberal 9th Circuit in San Francisco, where he successfully narrowed the Democratic advantage to three from 11 judges. During his first term, he lambasted the court for blocking progress in pushing through various controversial policies such as banning travel from certain Muslim-majority countries. Now he could potentially shift the balance of the court to a Republican-appointed majority if at least four Democratic-appointed judges retire or take senior status.
In his first term, Trump shifted the balance of three circuit courts from Democratic to Republican, though Democratic President Joe Biden later shifted the 2nd Circuit back. Now, Trump may be able to do something similar in the 4th Circuit in Richmond, Virginia, and the 10th Circuit in Denver if Democratic-appointed judges decide to retire or take senior status.
“Trump’s election with a Republican Senate could mean that most circuits will come to have solid Republican, conservative majorities,” says Erwin Chemerinsky, dean of Berkeley Law. “And since these judges have life tenure, the long-term effect on the federal judiciary will be enormous.” —With Greg Stohr and Emily Birnbaum
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