How Trump Can Reshape the Courts

There are lots of judicial vacancies beyond the Supreme Court.

One of many open seats.

Photographer: Andrew Harrer/Bloomberg

The Republican Senate has blocked or delayed many of President Barack Obama’s judicial nominees; his Supreme Court pick of Judge Merrick Garland is just the most visible. Now President-elect Donald Trump will be able to capitalize by filling those slots. And because of the Senate Democrats’ 2013 decision to exercise the “nuclear option” and eliminate the filibuster for all judicial nominees except for the Supreme Court, they won’t be able to filibuster Trump’s candidates.

Beyond the Supreme Court, where everything turns on the longevity and health of the three justices age 78 and older, what effect will Trump’s judges have on the state of the law in the U.S.? Will the Republicans’ delaying tactics prove to have been as useful in the lower courts as their blocking of Garland to fill the vacant Supreme Court seat?

There are lots of judicial vacancies right now, but more of them -- measured proportionately and absolutely -- are for district court judges than appeals court judges. The appellate judges are more important for shaping the law. The district judges have more day-to-day power. The effects of a large number of quickly confirmed Republican judges will therefore be pretty different at the appellate and district court levels.

Right now there are 13 open appeals court seats. There are 179 statutorily authorized appellate judges in the federal system. That’s a 7 percent vacancy rate.

To give you a sense of what Obama accomplished in eight years, he successfully appointed 54 appellate judges: 30 percent of those serving. George W. Bush appointed 63, and Bill Clinton got 66 (including Trump's sister Maryanne Trump Barry on the 3rd Circuit). Obama’s numbers are lower, but he certainly had a big impact on the appellate courts.

Adding 13 Republicans won’t change the balance of power on any of the 13 appellate circuits. The three-judge panels that first hear cases don’t have the legal authority to change precedent in their circuits. Only the full circuit court, sitting en banc, can do that. For now, at least, the en banc balance won’t change.

In practice, that means the appeals courts will remain an important bulwark against any Trump policies or laws that moderate to liberal Democratic judicial appointees consider unlawful. And that’s what political scientists consider the central function of judicial review: balancing shifts in political power by entrenching a check left behind by prior administrations.

Should Trump get to replace one or more of the liberal Supreme Court justices, the Supreme Court could be expected to overturn appellate decisions it considers too liberal. But even if that happens, it will take some time. And the justices review only a tiny percentage of the appellate cases decided every year. When it comes to shaping the law, the appellate courts are extremely important -- and for the moment, they remain very much in the Obama mold.

The district courts tell a somewhat different story. There are a stunning 81 district court vacancies, which is 12 percent of the total of 677 judgeships. For comparison, Obama got 262 appointments to Bush’s 263 and Clinton’s 306.

District judges don’t get to make the law. They’re bound to follow the precedent set by their circuit court as well as by the Supreme Court. And many cases litigated fully in district court get appealed, because the cost of appeals is usually low. So a rapid Trump nomination process to fill the 81 vacancies wouldn’t change the nature of legal doctrine.

But federal district judges have much more real-world power than their appellate counterparts, because district judges engage in large amounts of fact-finding and discretionary judgments that are effectively unreviewable. Generally, the appeals courts only reverse factual findings if they are “clearly erroneous,” which few factual determinations by courts really are. And discretionary decisions are respected unless they count as “abuse,” an even higher standard than clear error.

The true power of district judges therefore lies in their ability to decide individual cases in accord with their individual judgment -- judgment inevitably inflected by politics, perspective and experience. Because lawyers understand just how powerful the judges are, they typically settle litigation in the shadow of their expectations of how the judge might ultimately rule. That means the district judges aren’t just calling the shots in cases that reach final decision. They are also dictating outcomes in cases that get settled.

Trump’s district judges could therefore have a big impact on the realities of federal litigation -- and fast. Assuming his judicial candidates are pro-prosecution in criminal cases and pro-defendant in civil cases, they can change the way justice is being administered. A pro-corporate attitude in cases of either civil or criminal complexion would also have a visible and possibly measurable effect on the behavior of corporations and private individuals alike.

The effect of the district court appointments is likely to be felt within the legal profession and little reported in the media. The appellate courts get a tiny bit more attention, but even their decisions really make the front pages. The Supreme Court gets the glory -- and the blame.

But what happens in the lower courts does much more to determine the nature of law in the U.S. than the occasional interventions of the justices on high. In four years, Trump could affect the district courts powerfully and the appellate courts to a more limited degree. Over eight years, all bets are off.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.