Trump’s remaking of the judicial system
Much has been written about President Trump’s remaking of the federal judiciary through his prodigious appointment of federal judges. Indeed, the president has successfully ensconced a majority of conservative-leaning Justices on the Supreme Court. The Supreme Court, however, does not hear many cases, and so its ability to oversee the lower courts is necessarily limited. The lower federal courts thus take on significant importance, so much so that Democrats have spoken not only of packing the Supreme Court but also of expanding the size of the various lower federal courts.
To be sure, President Trump has been able to “flip” the complement of judges on three federal appellate courts from a majority of judges appointed by Democratic Presidents to a majority appointed by Republican presidents. But a closer examination of the federal courts of appeals in President Trump’s wake reveals a more nuanced, less uniform picture — one that suggests less justification to expand the lower federal courts to allow a Democratic president to appoint judges to balance things out.
Consider first that two federal courts of appeals have no Trump-appointed judges at all, and feature complements of judges appointed predominantly by Democratic Presidents. The U.S. Court of Appeals for the First Circuit — covering much of New England — had its first vacancy arise last month with the death of a Reagan-appointed judge; President Trump may have a chance to fill the seat (as well as one on the Seventh Circuit left vacant by Justice Amy Coney Barrett’s elevation to the Supreme Court) before his term expires. The U.S. Court of Appeals for the Federal Circuit mostly hears patent appeals — perhaps not a subject of significant partisan disagreement — but it also hears Takings Clause cases appealed from the Court of Federal Claims. President Trump has appointed a number of judges on the Court of Federal Claims (and has more nominations pending), with an eye to expanding private property rights. The roster of the Federal Circuit — lopsidedly staffed by judges appointed by Democratic Presidents — seems likely to limit that agenda.
Consider next other courts of appeals where, while President Trump was successful in appointing a few judges, judges appointed by Democratic Presidents retain dominance. President Trump appointed three judges to the District of Columbia Circuit—arguably the most important federal court beside the Supreme Court. Even with those judges, the court now features seven judges appointed by Democratic Presidents to four appointed by Republican Presidents. President Trump appointed ten judges to the Ninth Circuit (a favorite target for Republicans and conservatives). But that has served only to reduce the majority of judges appointed by Democratic Presidents to 16-13. The Tenth Circuit sports a 7-5 advantage for judges appointed by Democratic Presidents.
An initial look at the Fourth Circuit — which, by virtue of including the states of Maryland and Virginia hears a fair number of cases involving federal government entities — suggests that President Trump was successful in shifting the court that, while once rather conservative, has been dominated by Democratic-appointed judges for the last decade. President Trump’s three appointments seem to bring the Democratic-appointed judges’ majority to a bare 8-7. But one of the Republican-appointed judges — Judge Roger Gregory — was initially put on the court by President Bill Clinton via a recess appointment. In an apparent effort to show goodwill, President George W. Bush made Judge Gregory his first judicial nominee. This suggests that the ideological divide on the Fourth Circuit is not quite so close as the numbers initially suggest.
Finally, a look at the circuits that President Trump has successfully “flipped” leaves one wondering how strong that flip is, and how long it will last. The U.S. Courts of Appeals for the Third and Eleventh Circuits now both have a scant two-judge advantage in favor of Republican-appointed judges (8-6 and 7-5, respectively), while the Second Circuit’s advantage stands only at a single judge (7-6).
To be sure, President Trump’s appointments have bolstered or reinforced Republican-appointed judges’ majority on other courts of appeals. Still, the legacy of President Trump’s judicial appointments is likely to be far more limited than commonly assumed. Policymakers should consider this before rushing to expand the complement of the federal courts to limit the impact of the “Trump judges.”
Jonathan R. Nash is the Robert Howell Hall Professor of Law and Associate Dean for Research at Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. Follow him on Twitter at @JonathanRNash.