Trump is transforming the federal court system

July/August 2018

For decades, the federal court system has been over-run with liberal appointees, but Trump is quickly bringing back some balance.

President Trump and the U.S. Senate (led by Senate Majority Leader Mitch McConnell R-KY) continue to build upon their record-breaking first year as they strive to secure a lasting legacy as they transform the federal judiciary. Trump became the first president in 136 years to fill a Supreme Court vacancy in his first 100 days and set an all-time record for the most federal appeals judges confirmed during the first year of a presidency.

As of Aug. 29, his judicial nominee confirmations consists of one Supreme Court justice, 26 appellate court judges, and 33 district court judges.

McConnell’s decision to prioritize judicial confirmations by canceling the August Recess means a string of votes confirming 8 additional district court judges began on Sept. 4.

Understanding the basic structure of the federal judiciary is necessary to grasp the significance of what is happening. The judicial structure resembles an upside-down funnel or pyramid, getting narrower the higher you go.

The 94 U.S. District Courts are the lowest level and resolve disputes by determining the facts of the case and applying legal principles. Those District Courts are organized into 12 regional circuits. If a party loses at the district court level, they can appeal the decision to the Court of Appeals overseeing their circuit, which reviews the district court’s decision to determine whether or not the law was correctly applied. A losing party can then ask the U.S. Supreme Court to review the Court of Appeals, but it has discretion whether or not to grant review.

According to Senate Judiciary Committee Ranking Member Dianne Feinstein (D-CA), “circuit courts serve as the de facto Supreme Court to the vast majority of individuals who bring cases. They are the last word.” When you understand that, you can grasp the impact that Trump’s record number of appointments will likely have on the federal judiciary.

A brief look at the numbers clearly illustrates Feinstein’s point. The 12 regional appeals courts received 58,951 appeals in 2017. Of each year’s approximate 7-8,000 petitions (less than 14 percent of appeals court cases), the Supreme Court usually only grant about 80 cases. For the parties before the Courts of Appeals, that court will be the final word for 99.86 percent of them.

Despite Trump’s impressive pace, there is plenty of opportunity for him to continue reshaping the judiciary. As of Aug. 29, 85 nominees are currently pending for the 152 vacancies that remain. But Trump’s ability to continue transforming the judiciary depends on his party’s ability to maintain control of the U.S. Senate after the Nov. 6 midterm elections.

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