GOP Looks to Fill Lower Courts 04/23 09:55
Republicans have put President Donald Trump's Supreme Court nominee on the
bench, and they're now in a position to fill dozens more federal judgeships --
and reshape some of the nation's highest courts.
WASHINGTON (AP) -- Republicans have put President Donald Trump's Supreme
Court nominee on the bench, and they're now in a position to fill dozens more
federal judgeships --- and reshape some of the nation's highest courts.
Democrats have few ways to stop them.
The Republicans' opportunity comes with the GOP in control of Congress and
the White House, about 120 vacancies in federal district and appeals courts to
be filled and after years of partisan fights over judicial nominations.
Frustrated by Republican obstruction in 2013, then-majority Democrats
changed Senate rules so judicial nominations for those trial and appeals courts
are filibuster-proof, meaning it takes only 51 votes, a simple majority in the
100-member Senate, for confirmation.
Today, Senate Republicans hold 52 seats.
The Democratic rules change did not apply to Supreme Court nominations. But
Senate Republicans are now in the majority, and they changed the rules in
similar fashion this month to confirm federal Judge Neil Gorsuch to the high
court over Democratic opposition. As a result, the GOP can almost guarantee
confirmation of future Supreme Court justices, as well, if there are more
openings with Trump in office and Republicans are in the majority.
"The Trump administration does have an opportunity to really put its mark on
the future of the federal judiciary," says Leonard Leo, the executive vice
president of the conservative Federalist Society and an adviser to Trump on the
Reflecting a conservative judicial philosophy, Leo says the unusual number
of vacancies that Trump is inheriting could reorient the courts of appeals, in
particular, "in a way that better reflects the traditional judicial role, which
is interpreting the law according to its text and placing a premium on the
Constitution's limits on government power."
That philosophy was a priority for the late Justice Antonin Scalia, whom
Gorsuch replaced, and Trump has said he wants the federal judiciary to reflect
There are currently 20 vacancies in the federal appeals courts, which are
one step below the Supreme Court, and roughly 100 more in district courts,
where cases are originally tried. Former President Barack Obama had around half
that number of vacancies when he took office in 2009. Of the current vacancies,
49 are considered judicial emergencies, a designation based on how many court
filings are in the district and how long the seat has been open.
As the White House has focused on the Gorsuch nomination, Trump has so far
only nominated one lower-court judge, Amul R. Thapar, a friend of Senate
Majority Leader Mitch McConnell of Kentucky, for the 6th Circuit U.S. Court of
Republican senators say they hope to see more nominations soon from the
"We've heard from them and we're talking to them," says Texas Sen. John
Cornyn, a member of the Senate Judiciary Committee and the No. 2 Republican
The number of vacancies is a monumental opportunity for conservatives
looking to exert more influence on a judiciary that they see as too liberal and
activist. But it also could work to Republicans' disadvantage. Democrats can't
stop the process, but they can delay it, and they still can call for procedural
votes that will delay other Senate business when Republicans are trying to
confirm each individual judge.
If they do that, says Senate Judiciary Committee Chairman Charles Grassley,
R-Iowa, "we'll have more vacancies than we have now."
Democrats haven't signaled a strategy for lower court judges, but partisan
tension over the judiciary is at a peak after McConnell blocked Obama's nominee
for Scalia's seat, federal Judge Merrick Garland, then changed the Senate rules
to avert a Democratic filibuster of Gorsuch this month. They're also frustrated
that Senate Republicans confirmed very few of Obama's picks once the GOP
regained control of the Senate in 2015.
Also unclear is whether the traditional practice will persist in which both
senators from a state, regardless of party, consult with the White House on a
nominee and then have to approve of the nominee for the Senate Judiciary
Committee to move forward. Grassley said this month he is committed to honoring
the practice, but said "there are always some exceptions."
Of Democratic senators working with the White House, Grassley says "it ought
to be pretty easy" in states that have at least one Republican senator. But
there are multiple vacancies in states with two Democrats, including eight
district court openings in New York and six in California.
In Texas, which has two Republican senators, there are two appeals court
vacancies and 11 district court vacancies. Sens. John Cornyn and Ted Cruz are
continuing their practice of creating and consulting with a bipartisan panel of
leading state attorneys to help identify the most qualified candidates for
Sen. Lindsay Graham, R-S.C., a committee member, says he thinks the future
of the bipartisan process is "the real fight" going forward. He says he hope it
"I think there's a lot of desire to keep that power within the Senate," he