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Under Trump, the Federal Courts Will Be Up For Grabs Under Trump, the Federal Courts Will Be Up for Grabs
(about 13 hours later)
In a recent issue of Judicature, an academic journal for judges published by Duke University Law School, Timothy J. Corrigan, a federal district judge in Florida, reflected on “the most multifaceted, emotional, and challenging task a judge performs ” — sentencing convicted criminal defendants. Judge Corrigan wrote about the broad discretion that district judges exercise, describing experiences from his 14 years on the bench that were both heart-rending (tear-stained letters from young children begging mercy for their parents) and hair-raising (an assassination attempt). The article’s title, across the journal’s front cover, said it all: “Who Appointed Me God?”In a recent issue of Judicature, an academic journal for judges published by Duke University Law School, Timothy J. Corrigan, a federal district judge in Florida, reflected on “the most multifaceted, emotional, and challenging task a judge performs ” — sentencing convicted criminal defendants. Judge Corrigan wrote about the broad discretion that district judges exercise, describing experiences from his 14 years on the bench that were both heart-rending (tear-stained letters from young children begging mercy for their parents) and hair-raising (an assassination attempt). The article’s title, across the journal’s front cover, said it all: “Who Appointed Me God?”
Of course it’s presidents who appoint federal judges, subject to Senate confirmation. (In Judge Corrigan’s case, it was President George W. Bush.) Soon after he takes office next month, President-elect Donald J. Trump will nominate someone to the Supreme Court seat kept empty by the Senate Republicans’ refusal to consider President Barack Obama’s nomination of Chief Judge Merrick Garland nine months ago. Most likely, the new president will announce his choice in advance of the mid-February anniversary of Justice Antonin Scalia’s death. Whether selected from Mr. Trump’s list of 21 potential nominees or from somewhere else, his choice will face intense scrutiny before and during a televised Senate confirmation hearing.Of course it’s presidents who appoint federal judges, subject to Senate confirmation. (In Judge Corrigan’s case, it was President George W. Bush.) Soon after he takes office next month, President-elect Donald J. Trump will nominate someone to the Supreme Court seat kept empty by the Senate Republicans’ refusal to consider President Barack Obama’s nomination of Chief Judge Merrick Garland nine months ago. Most likely, the new president will announce his choice in advance of the mid-February anniversary of Justice Antonin Scalia’s death. Whether selected from Mr. Trump’s list of 21 potential nominees or from somewhere else, his choice will face intense scrutiny before and during a televised Senate confirmation hearing.
But as Judge Corrigan’s essay reminds us, the Supreme Court nomination, crucial as it is, is the tip of a very big iceberg. That high-profile nomination will mark only the beginning of the Trump administration’s effort to gain control of a federal judiciary that has gradually, almost imperceptibly slipped into Democratic hands during the Obama years.But as Judge Corrigan’s essay reminds us, the Supreme Court nomination, crucial as it is, is the tip of a very big iceberg. That high-profile nomination will mark only the beginning of the Trump administration’s effort to gain control of a federal judiciary that has gradually, almost imperceptibly slipped into Democratic hands during the Obama years.
The purpose of this column is to focus attention on the courts that only episodically receive it: the federal trial and appellate courts. Together, these courts contain a congressionally authorized 852 life-tenured judicial positions, of which around 100 are now vacant, a number that will grow by the end of the year as judges enter previously announced retirement or senior status. The federal district courts and the circuit courts of appeals take in about 400,000 cases a year. In its last term, the Supreme Court issued 63 opinions. It hardly needs saying that the lower courts matter.The purpose of this column is to focus attention on the courts that only episodically receive it: the federal trial and appellate courts. Together, these courts contain a congressionally authorized 852 life-tenured judicial positions, of which around 100 are now vacant, a number that will grow by the end of the year as judges enter previously announced retirement or senior status. The federal district courts and the circuit courts of appeals take in about 400,000 cases a year. In its last term, the Supreme Court issued 63 opinions. It hardly needs saying that the lower courts matter.
Against all odds, and in part a result of the elimination of the filibuster for non-Supreme Court nominations in 2013, the Obama administration managed to get 327 judges confirmed. As a result, Democratic appointees in active service — that is, not counting senior judges who usually carry less than a full caseload and whose assumption of senior status creates a vacancy — constitute just over half of the district and circuit courts. (My statistics come from a valuable analysis by Russell Wheeler, a Brookings Institution scholar who is the country’s most astute observer of the ebb and flow of federal judgeships.)Against all odds, and in part a result of the elimination of the filibuster for non-Supreme Court nominations in 2013, the Obama administration managed to get 327 judges confirmed. As a result, Democratic appointees in active service — that is, not counting senior judges who usually carry less than a full caseload and whose assumption of senior status creates a vacancy — constitute just over half of the district and circuit courts. (My statistics come from a valuable analysis by Russell Wheeler, a Brookings Institution scholar who is the country’s most astute observer of the ebb and flow of federal judgeships.)
But the geographical distribution of Obama appointees is far from uniform, because of the power of individual senators to block nominations to judgeships in their states. Under the Senate’s “blue slip” tradition, a state’s two senators must both indicate in writing their acceptance of a nomination before the Judiciary Committee will even schedule a hearing. While there are now majorities of Democratic appointees on nine of the 13 circuit courts (including the powerful District of Columbia Circuit, to which no single senator can block a nomination because the nation’s capital lacks Senate representation), Republican appointees have retained majorities on four where Republican senators have retained a tight grip.But the geographical distribution of Obama appointees is far from uniform, because of the power of individual senators to block nominations to judgeships in their states. Under the Senate’s “blue slip” tradition, a state’s two senators must both indicate in writing their acceptance of a nomination before the Judiciary Committee will even schedule a hearing. While there are now majorities of Democratic appointees on nine of the 13 circuit courts (including the powerful District of Columbia Circuit, to which no single senator can block a nomination because the nation’s capital lacks Senate representation), Republican appointees have retained majorities on four where Republican senators have retained a tight grip.
The most obvious of those is the Fifth Circuit, based in New Orleans and covering Louisiana, Mississippi and Texas. It was the Fifth Circuit that blocked President Obama’s deportation-deferral program (in a decision affirmed without opinion by a deadlocked Supreme Court) and that upheld a law that would have closed most of the abortion clinics in Texas; the Supreme Court declared that law unconstitutional last June. The year will end with proportionately more vacancies on the Fifth Circuit than on any other appeals court, three out of 17 seats.The most obvious of those is the Fifth Circuit, based in New Orleans and covering Louisiana, Mississippi and Texas. It was the Fifth Circuit that blocked President Obama’s deportation-deferral program (in a decision affirmed without opinion by a deadlocked Supreme Court) and that upheld a law that would have closed most of the abortion clinics in Texas; the Supreme Court declared that law unconstitutional last June. The year will end with proportionately more vacancies on the Fifth Circuit than on any other appeals court, three out of 17 seats.
Side-by-side comparisons of one court to another are often not meaningful, given the myriad ways that individual cases differ. But an unusually precise and powerful comparison, revealing the Fifth Circuit to be the outlier that it has anecdotally long appeared to be, is part of a pending Supreme Court case, a death penalty appeal from Texas that the justices heard on Oct. 5 and have yet to decide. The case, Buck v. Davis, challenges the Fifth Circuit’s refusal to review an African-American death-row inmate’s death sentence despite the state’s concession 16 years ago that the sentence was most likely infected by racial bias.Side-by-side comparisons of one court to another are often not meaningful, given the myriad ways that individual cases differ. But an unusually precise and powerful comparison, revealing the Fifth Circuit to be the outlier that it has anecdotally long appeared to be, is part of a pending Supreme Court case, a death penalty appeal from Texas that the justices heard on Oct. 5 and have yet to decide. The case, Buck v. Davis, challenges the Fifth Circuit’s refusal to review an African-American death-row inmate’s death sentence despite the state’s concession 16 years ago that the sentence was most likely infected by racial bias.
Under the convoluted law governing habeas corpus, which is the procedure by which federal courts review state-court criminal sentences, an inmate who loses a case before a federal district judge does not have an automatic right to appeal. The district judge or federal appeals court must first grant a “certificate of appealability,” reflecting a finding that the issue to be appealed is one on which reasonable judges can come to different conclusions. In this case, the Fifth Circuit refused to grant the certificate to the inmate, Duane Edward Buck. Seeking to place the court’s refusal in context, Mr. Buck’s lawyers at the NAACP Legal Defense and Educational Fund undertook a study of how several federal circuits that dealt regularly with death penalty cases handled this gate-keeping function.Under the convoluted law governing habeas corpus, which is the procedure by which federal courts review state-court criminal sentences, an inmate who loses a case before a federal district judge does not have an automatic right to appeal. The district judge or federal appeals court must first grant a “certificate of appealability,” reflecting a finding that the issue to be appealed is one on which reasonable judges can come to different conclusions. In this case, the Fifth Circuit refused to grant the certificate to the inmate, Duane Edward Buck. Seeking to place the court’s refusal in context, Mr. Buck’s lawyers at the NAACP Legal Defense and Educational Fund undertook a study of how several federal circuits that dealt regularly with death penalty cases handled this gate-keeping function.
The difference among the courts, documented in an appendix to Mr. Buck’s Supreme Court brief, was startling. Going back for the last five years, courts in the Fourth Circuit (based in Richmond, Va., and covering Virginia, West Virginia, Maryland and the Carolinas) granted certificates of appealability in all 12 capital habeas corpus appeals. Courts in the 11th Circuit (based in Atlanta and covering Georgia, Florida and Alabama) granted certificates in 104 out of 111 cases. Courts in the Fifth Circuit, by contrast, received 129 appeals and granted certificates in only 53, denying 60 percent of the requests. While Mr. Buck’s lawyers didn’t make this point, the Fourth and Eleventh Circuits, unlike the Fifth Circuit, both have Democratic-appointed majorities. Should that matter when it comes to the life-or-death decisions at issue in these cases? No. Does it matter? The statistics speak volumes.The difference among the courts, documented in an appendix to Mr. Buck’s Supreme Court brief, was startling. Going back for the last five years, courts in the Fourth Circuit (based in Richmond, Va., and covering Virginia, West Virginia, Maryland and the Carolinas) granted certificates of appealability in all 12 capital habeas corpus appeals. Courts in the 11th Circuit (based in Atlanta and covering Georgia, Florida and Alabama) granted certificates in 104 out of 111 cases. Courts in the Fifth Circuit, by contrast, received 129 appeals and granted certificates in only 53, denying 60 percent of the requests. While Mr. Buck’s lawyers didn’t make this point, the Fourth and Eleventh Circuits, unlike the Fifth Circuit, both have Democratic-appointed majorities. Should that matter when it comes to the life-or-death decisions at issue in these cases? No. Does it matter? The statistics speak volumes.
Most judicial vacancies occur under what is known as the rule of 80: Federal judges who turn 65 are eligible for senior status once their age and their years of service total at least 80. In his recent statistical study, Russell Wheeler of Brookings calculated how many judges now serving on the circuit courts would be eligible for senior status by 2020. The total was 98 of the 179 judgeships on those courts. Of the 98, 48 are Democratic appointees. “If Trump replaced all 48 eligible Democratic appointees, every court of appeals would become a Republican-appointee majority court,” Mr. Wheeler wrote. He added “that’s not going to happen” — presumably because many of those newly eligible judges would choose to remain in active service for years to come. On the federal districts courts, 216 judges are currently eligible for senior status or will become eligible by mid-2020. Most of those, 61 percent, are Republican appointees; some number of those currently eligible have perhaps been waiting for the outcome of the election before deciding whether to exercise their right to reduce their workload and create a vacancy. In any event, the numbers are substantial, as is the new administration’s opportunity to shift the direction of the entire federal judiciary. The coming Supreme Court nomination may be mesmerizing, but it shouldn’t deflect attention from the full picture.Most judicial vacancies occur under what is known as the rule of 80: Federal judges who turn 65 are eligible for senior status once their age and their years of service total at least 80. In his recent statistical study, Russell Wheeler of Brookings calculated how many judges now serving on the circuit courts would be eligible for senior status by 2020. The total was 98 of the 179 judgeships on those courts. Of the 98, 48 are Democratic appointees. “If Trump replaced all 48 eligible Democratic appointees, every court of appeals would become a Republican-appointee majority court,” Mr. Wheeler wrote. He added “that’s not going to happen” — presumably because many of those newly eligible judges would choose to remain in active service for years to come. On the federal districts courts, 216 judges are currently eligible for senior status or will become eligible by mid-2020. Most of those, 61 percent, are Republican appointees; some number of those currently eligible have perhaps been waiting for the outcome of the election before deciding whether to exercise their right to reduce their workload and create a vacancy. In any event, the numbers are substantial, as is the new administration’s opportunity to shift the direction of the entire federal judiciary. The coming Supreme Court nomination may be mesmerizing, but it shouldn’t deflect attention from the full picture.
I can’t end this column without shifting gears for a word about North Carolina’s governor, Pat McCrory, and his long-delayed concession this week to his Democratic opponent, Roy Cooper, the state’s attorney general. For weeks after losing his bid for re-election, despite trailing by growing margins, Governor McCrory refused to concede. Instead, he claimed voter fraud. Turns out there was no voter fraud, but rather, according to polling commissioned by the Human Rights Campaign, voter fatigue with his anti-gay and anti-transgender shenanigans that brought the state embarrassment and lost business. (Governor McCrory received 63,000 fewer votes than Donald Trump.)I can’t end this column without shifting gears for a word about North Carolina’s governor, Pat McCrory, and his long-delayed concession this week to his Democratic opponent, Roy Cooper, the state’s attorney general. For weeks after losing his bid for re-election, despite trailing by growing margins, Governor McCrory refused to concede. Instead, he claimed voter fraud. Turns out there was no voter fraud, but rather, according to polling commissioned by the Human Rights Campaign, voter fatigue with his anti-gay and anti-transgender shenanigans that brought the state embarrassment and lost business. (Governor McCrory received 63,000 fewer votes than Donald Trump.)
It was in the name of preventing voter fraud that Governor McCrory championed North Carolina’s oppressive new election law, the law that the Fourth Circuit struck down this summer as a deliberate attempt to suppress the vote of African-Americans. There was no demonstrable voter fraud, the appeals court found, describing the law as a solution to a non-problem. If there was poetic justice in any election outcome this year, Governor McCrory’s defeat surely was it.It was in the name of preventing voter fraud that Governor McCrory championed North Carolina’s oppressive new election law, the law that the Fourth Circuit struck down this summer as a deliberate attempt to suppress the vote of African-Americans. There was no demonstrable voter fraud, the appeals court found, describing the law as a solution to a non-problem. If there was poetic justice in any election outcome this year, Governor McCrory’s defeat surely was it.