The death of Justice Antonin Scalia put the issue of Supreme Court appointments front and center of the 2016 presidential election. The unexpected vacancy also highlighted the fact that three of the remaining eight justices are near — or over — 80 years of age. The next president will shape the high court for generations.
No candidate has given Supreme Court appointments more attention than Donald J. Trump.
Pledging that he will nominate common-sense constitutionalists to the Supreme Court, Trump includes the issue in every stump speech and many interviews. Trump even published a list of his prospective SCOTUS picks which received widespread approval from a variety of constituencies.
Most recently, Donald TrumpDonald TrumpJulian Castro knocks Biden administration over refugee policy Overnight Energy & Environment — League of Conservation Voters — Climate summit chief says US needs to 'show progress' on environment Five takeaways from Arizona's audit results MORE has begun addressing the importance of appointments to lower federal courts. There are over 100 lower court judgeships that are now vacant with many more empty benches coming in 2017 due to planned retirements. Like Supreme Court justices, all lower federal judges have fulsome powers and are appointed with life tenure of office and salary.
There is no issue that will “bring Republicans home” to Donald Trump quicker than the future of the federal judiciary — writ large. George W. Bush effectively made lower court nominations and Senate confirmations the centerpiece of his 2000 and 2004 campaigns. Trump has only to further emphasize his commitment to lower court constitutionalist judges.
To remind, the U.S. Supreme Court decides less than 80 cases per term. It is the U.S. Court of Appeals, sitting in its geographic circuits, that is the final appellate decision-maker for 99 percent of all federal cases. These Court of Appeals (a/k/a Circuit) judges are the final word for tens of thousands of cases every year.
The U.S. Judicial Conference reports that there are 13 Court of Appeals judgeships now vacant. And there are at least another half-dozen vacancies soon expected by planned retirements. Many geographic circuits of the intermediate appellate court reflect the ideological division of the Supreme Court. Trump’s 2017 Court of Appeals appointments will have both immediate and long term consequence.
And the U.S. Judicial Conference also informs that on our federal trial courts there are now over 80 judge vacancies with another 15 to 20 additional empty benches expected next year from retirements. These U.S. District Courts, which are located in each state, are where the hard, day-to-day work of federal justice happens. Trump should tie his plans for conservative trial judge picks to his broader call for a return to law and order.
During his tenure, Barack ObamaBarack Hussein ObamaTop nuclear policy appointee removed from Pentagon post: report Prosecutors face legal challenges over obstruction charge in Capitol riot cases Biden makes early gains eroding Trump's environmental legacy MORE shifted the courts leftward by appointing a total of 329 federal judges including 2 Supreme Court justices, 55 Court of Appeals Judges, 268 District Court judges, and 4 judges to the Court of International Trade.
With quick appointment action in his first 100 days, Trump could strike a more moderate ideological balance on the U.S. Supreme Court, the U.S. Court of Appeals, U.S. District Courts, and other lesser known specialized federal courts. And these life-tenured jurists will continue to influence constitutional, administrative, criminal, and business jurisprudence well past a Trump presidency.
The second most important issue that is bringing Republicans home to Trump is regulation reform for economic growth. In concert with tax cuts and smart trade, Trump argues that substantial regulatory reduction will jump-start the American economy and lead to meaningful job growth.
Again the president’s Article II, Section 2 appointment powers are central. Genuine regulatory reform can only come about with transformative appointments to a score of independent agencies and regulatory commissions.
Beyond selecting cabinet secretaries, top department leaders, and Executive branch agency heads, it will be Donald Trump’s strategic appointment of commissioners to the alphabet soup of American independent agencies (eg. SEC, FTC, FCC, EPA, NLRB, FRB, FDIC, FERC) that will bring genuine regulatory reform.
The binary choice between Donald J. Trump and Hillary ClintonHillary Diane Rodham ClintonDemocrats worry negative images are defining White House Heller won't say if Biden won election Whitmer trailing GOP challenger by 6 points in Michigan governor race: poll MORE should be an easy one for Republicans, and indeed all Americans, who want both a return to the American rule of law and economic growth by regulatory reform.
Victor Williams is a Washington, D.C. attorney and law professor. He leads Lawyers and Law Professors for Trump – goplawyers.com
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