Written by Robert Warden

One of the great things about writing blogs that I need to research is that doing so is educational. Presumably, reading them is also educational for many people. I have often heard in the past that presidents appoint many judges, but the details were sketchy to me. For this post, I have needed to look up the basics of what kind of courts a president appoints judges to, which in fact is far more judgeships than I had realized.

The number of judgeships that are appointed by the president are apparently in the hundreds. The president is charged with appointing all federal judges, in fact. This includes Appeals Courts, and District Courts (http://www.uscourts.gov/judges-judgeships/authorized-judgeships/judgeship-appointments-president). Of the two, Appeals Courts are the higher and more important level, and thus the president is likely to put more effort into deciding who to nominate for these positions. However, given the number of judgeships to be decided, it seems clear that a president relies greatly upon advice about who to nominate. (That is probably true even of Supreme Court nominees, for that matter.) I can’t imagine a president using so much of his or her precious time as would be required to scrutinize the records of thousands of potential judgeship nominees in order to make these decisions. In fact, sources say that District Judges are usually suggested by Senators from the particular state or by advisors, and the president simply adheres to those suggestions. However, apparently presidents do look over the records of Appeals Court suggestions before deciding who to nominate.

With the Supreme Court still having a conservative majority in place, the Trump administration, surely under the guidance of advisors and Republican politicians, are now going about attempting to fill a large number of vacant seats with conservative judges in Appeals and District Courts, with the emphasis on Appeals Courts (https://www.nytimes.com/2017/11/11/us/politics/trump-judiciary-appeals-courts-conservatives.html). The maddening part of all this is that Republicans blocked a great many of Obama’s nominees during his last two years in office once Republicans had a majority in the Senate, so that, like the Supreme Court vacancy, they were left vacant until the current administration.

All of this matters greatly to the legal system. There are at least three reasons that it matters so much. First, all courts show political biases, so having a predominance of conservative judges will skew the decisions that are being made toward the conservative viewpoint. Second, precedence is very important in the legal system. Many of these cases which are decided by conservative judges, using conservative “principles,” will become precedents for future, similar cases, meaning that courts, even the Supreme Court, will tend to rely on the original precedent and decide cases the same way. Third, District and Appeals Courts act as training grounds for future Supreme Court nominees.

Late in 2013, Democrats in the Senate, who still had the majority then, eliminated the ability of the minority party to filibuster judge appointments. Democrats then lost their majority in the Senate in 2014, and since that time, Republicans have been using lack of ability to filibuster against Democrats. The judges are being confirmed by simple majorities of Senators. However, Republicans have the slimmest of majorities in the Senate now. One reason that flipping the Senate majority to Democrats is so important, is to stop these conservative judges, some of whom are ultraconservatives, from being confirmed by the Senate. Unfortunately, the numbers do not favor Democrats in this year’s Senate midterms, since most incumbents running for re-election are Democrats, but it will in 2020 and 2022. Even so, there is a good chance that Democrats will regain the majority in the Senate this year.

Aside from lobbying to elect Democrats to the Senate this year, and to the Sennte and presidency in 2020, what we can do about this situation is to complain about it, to make our voices heard. Earlier today, the Bundy family, who had a standoff with the Bureau of Land Management 4 years ago, were acquited by a federal judge in Nevada. (This was 2 years before they occupied a wildlife refuge in Oregon.) I don’t know anything about the judge in Nevada who threw out the case against the Bundy family today, but I do know that we can expect many more decisions like that if conservatives dominate the courts, and the public does not complain about the injustice of the justice system. If nothing else, it may be possible for lawyers and lawmakers to take steps to reform the legal system and reinforce it against abuses of power by biased judges.
Judgeship Appointments By President