- The Washington Times - Tuesday, May 8, 2018

President Trump has won confirmation of 15 circuit court judges, but he still has a long way to go in reshaping the courts because most of those picks have replaced retiring Republicans rather than adding to the party’s overall numbers.

So far, Mr. Trump has not dramatically altered the makeup of any of the 12 circuit courts of appeals.

But with a dozen circuit court nominees pending, that could soon change. In several circuits, the number of Democrat-appointed judges is slightly higher than the number of Republican-appointed judges.

Mr. Trump also could make a major dent in the 9th Circuit, long the country’s most liberal federal appeals court, where Democrat appointees hold a 16-6 advantage among active judges. The court has eight vacancies for Mr. Trump to fill.

“Eight new circuit judges is inherently a big deal. It’s a lot of fresh blood,” said Joseph Tartakovsky, a constitutional law fellow at the Claremont Institute.

For Republicans, the circuit courts are at the top of a crowded Senate agenda. Majority Leader Mitch McConnell, Kentucky Republican, has said he will prioritize judicial confirmations even over legislation on the floor because the judges will shape the country for decades to come.

Some analysts said it shouldn’t matter who appoints judges because they should rule equally no matter which party is in power when they join the court. But others said the record makes clear that judges’ philosophy seems to tack closely to the party that nominated them.

When President Barack Obama left office, eight circuits had a majority of active judges appointed by Democrats, and Republican nominees were a majority on four circuits.

Mr. Trump has padded the Republican numbers on the 5th, 6th and 8th circuit courts, which were already Republican-dominated, and has closed the gap on the 11th, a majority Democratic circuit.

But because of retirements, Republicans have lost ground among active judges on the 4th, 9th and 10th circuits since the beginning of 2017, when Mr. Trump took office.

“It is significant when the gap narrows,” said Curt Levey, president of the Committee for Justice. “The proportion matters even if it doesn’t flip.”

Since the Supreme Court takes only a limited number of cases, the circuit courts end up making binding policy on a number of big issues.

Particularly on cases where the high court hasn’t issued firm precedent, circuit court rulings can play major roles in defining legal battles.

Leonard Leo, an outside adviser to Mr. Trump on judicial nominees, said it’s not so much the party that appoints a judge as much as it is the judicial philosophy that the nominee brings.

“The key question is whether the judge being replaced showed a strong commitment to the rule of law, the limits on government power contained in our Constitution and interpreting the law as it is written rather than making things up. Measured by that standard, the appointments the president is making are significant, even transformative,” Mr. Leo said.

Both parties have fought bitterly over the pace of circuit court confirmations.

Democrats used the “nuclear option” to eviscerate filibuster rules in 2013 after Republicans slow-walked Majority Leader Harry Reid’s efforts to pack the U.S. Circuit Court of Appeals for the District of Columbia with Obama appointees.

Mr. Obama would go on to name four of the current 11 judges on that court, helping Democrats gain a 7-4 advantage on what many legal analysts consider to be the second most important court in the country.

When senior judges, who hear cases at a slower pace, are included, the D.C. circuit’s balance is flipped. The five Republican appointees and one Democratic nominee among the senior judges bring the court’s tally to eight Democrats and nine Republicans because of Mr. Trump’s nomination of Judge Gregory G. Katsas.

When senior judges are included, Republican appointees have a majority on eight circuits, Democrats hold a majority on three and one circuit is evenly split, according to a tally by The Washington Times.

Caseloads are lighter for senior judges, and they typically don’t join en banc rulings, which is when the full court reconsiders a case.

But they can take part in three-judge panels, and the ideological makeup of those panels can impact the litigants, said Michael Gerhardt, a law professor at the University of North Carolina.

He said the Trump administration has viewed the courts as too activist, and the president’s advisers have given much thought to the types of jurists he should nominate.

“I think the objective for the administration will be eventually to tip all of the courts of appeals in favor of GOP appointments,” Mr. Gerhardt said.

Charles Fried, a law professor at Harvard University, is disappointed that judicial nominees are chosen these days on more ideological and political grounds.

“In the end, we might as well elect our judges and have done with it,” he said.

Although battles over circuit court nominations have intensified in recent years, they are nothing new.

One of the most pointed debates was when President George W. Bush tried to fill a vacancy on the 6th U.S. Circuit Court of Appeals while that court was taking up contentious affirmative action policies at the University of Michigan.

According to a memo from Democratic staff on the Senate Judiciary Committee, Democrats were slow-walking Mr. Bush’s pick, fearing another Republican appointee on the bench could swing the case against Democrats’ position.

“The thinking is that the current 6th Circuit will sustain the affirmative action program, but if a new judge with conservative views is confirmed before the case is decided, that new judge will be able, under 6th Circuit rules, to review the case and vote on it,” staffers wrote in an April 17, 2002, memo to then-Sen. Edward M. Kennedy, advising him to slow the confirmation process for Tennessee Judge Julia S. Gibbons.

Republicans obtained the memo because of computer system irregularities. Democrats blasted the Republicans for releasing the memos but struggled to defend their own moves.

“Seemed counter to the idea of judges being neutral arbiters,” said Mr. Levey, who was an attorney involved in the affirmative action case.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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