President Trump’s First Judicial Nominees

From May 26th, 2017 Posting

Inside Washington

Challenges and opportunities in filing the bench

By Nikolas Grosfield

Filling federal judicial vacancies is one of many issues that often succumb to politics, soundbites, confusion, or even forgetfulness. On the last factor, judges and justices are unbound to those who nominate and confirm them, and so sometimes they vote or opine in unexpected ways in a given case. Of course, this does not simplify the job of putting them on the bench.

At his inauguration, President Donald Trump inherited at least 100 empty federal judgeships. By contrast, Presidents Barack Obama and George W. Bush, respectively, inherited about 55 and 85 vacancies. Bill Clinton entered the White House with a similar number to Trump. And of course, more vacancies opened throughout the above administrations. Ronald Reagan achieved the most confirmed federal court appointments of any president at 384—with Clinton close behind at 379. [MORE]

Trump recently directed his first list of nominees to the U.S. Senate, which constitutionally must approve all appointments. Ten men and women will have a chance to receive lifelong jobs in the judicial branch—five contending for Circuit Courts of Appeals (immediately below the Supreme Court), four for lower District Courts, and one for the Court of Federal Claims.

Despite the large numbers, Trump’s initial nominees have gained considerable attention. Some emphasize their younger average age than Obama’s first nominees: about 48 versus 56 years old. This means they are likely to serve longer, but they also might be a little less predictable if they have shorter records to observe. Both the president and senators will require wisdom in weighing these factors.

Another angle they could consider is that Democrat presidents have appointed about two-thirds of the current 673 district judges, while presidents from both parties have appointed about half of the present circuit judges. Thus, Republican senators might not quibble much over Trump’s early nominees. But if the left-right numbers begin to balance, the Senate may start requiring more (or less) conservative appointees.

One more issue to ponder is whose vacancy is to be filled. Replacing a conservative with another conservative, for example, maintains the present ratio of conservatives on the federal bench. Any gains or losses in proportions occur when a conservative replaces a moderate or liberal judge—or vice versa. Similarly, nine circuit courts already lean left, and four lean right. Of 179 total circuit seats, 23 vacancies presently exist. Slight changes to their internal status may not alter the overall stance of the appellate courts.

Finally, while the Constitution obliges the president to seek the Senate’s “advice and consent” on his federal court nominees, a 100-year-old Senate tradition provides a further check on his power to stack the courts one way or another. Under the “blue-slip rule,” individual senators can block a nominee who comes from their home state. No law or formal requirement backs up the tradition, so some senators want to drop it if partisan abuse seems rampant. Others, from both parties, want to keep it to retain more basic power in the legislative branch of government.

Beneath all the hype over Trump’s nominees, or any judicial issue, is the fact that sinful humans founded—and still run—America’s system of government. Some are conservative or liberal, but who is wise or just? 1 Corinthians 1 contrasts God’s wisdom, found in Christ and the cross, with man’s folly. And Psalm 25 outlines God’s forgiving and instructive approach to humble sinners. In both passages, the God who is Creator (who gets to rule), King (who determines the rule), and Savior (who rescues rule breakers) offers the only perfect justice system. Hiring legal authorities with even the faintest shadow of God’s character could be Washington’s greatest—and hardest—quest.

Please pray for:

  • Divine insight, if not intervention, for nominating and confirming federal judges.
  • American churches always to crave and seek God’s wisdom and justice above man’s. 

Nikolas Grosfield is a writer from Montana. His work has appeared 180 times in national, local, and other media outlets. He earned a B.A. in History at Cedarville University, lived five years in the Middle East and East Africa. He is a devoted child of God, husband of Elsbeth, and daddy of Oliver and Elias.