President Trump is shaping the federal judiciary with the confirmation of a 12th circuit court judge earlier this month. Trump set a record for the most appellate judges confirmed in a president’s first year in office. President Trump began his term having to fill 150 vacancies in the federal courts, or about 10 percent of the federal judiciary, largely due to a backlog caused by Republican obstruction of confirmations during the Obama administration. Early in his first year in office, Trump appointed conservative Supreme Court Justice Neil Gorsuch. But legal experts say Trump’s appointments to the lower courts will have the most impact on American life because those courts decide nearly all cases, ranging from voting rights and contraception to gay rights and immigration.
Many of Trump’s appointees have drawn scrutiny, including Leonard Grasz, who was the Senate—who the Senate confirmed earlier this month to the 8th Circuit Court of Appeals despite a “not qualified” rating from the American Bar Association. Grasz is one of at least four Trump nominees the ABA deemed “not qualified.” Meanwhile, Trump’s nominee to a lifetime appointment on the U.S. District Court in Washington withdrew from consideration, after widely circulated video showed he was unable to answer basic questions about the law and had never tried a case in court.
Judge Shira Scheindlin talking:
A lot is happening right now—and, as you already said, at record speed. You mentioned that 12 circuit judges have been confirmed. The previous high was three, and that was President Obama, got three circuit judges confirmed in his first year. So, we are seeing a rapid effort to pack the courts with what can only be termed very conservative judges and justices.
We have one Supreme Court justice, and everybody pays a lot of attention to that, but the reality is that the lower courts is where the action is. So, on the 13 circuit courts, they write 60,000 opinions. The Supreme Court writes 62. So, you can see that the final word in most cases is at the appellate level. The trial courts write several hundred thousand opinions per year. There are a total of about 179 circuit judges throughout the country, 677 district court judges. And as you know, a Supreme Court vacancy is a very rare event.
So, if those lower courts become filled with very conservative judges, all of whom who have life tenure, all of whom will serve 30 to 40 years, then the impact of these appointments will last for decades. And the judges he’s picked are not going to be friendly to abortion rights, gay rights, affirmative action, voting rights—so many issues that affect so many people on a daily basis. They’re anti-regulation. There’s just so many subject matters that will change when these folks become the majority on the various appellate and district courts.
– Trump has not only rushed all these appointments, but he’s also ceded the selection of the judges to the Federalist Society and the Heritage Foundation.
Those are the go-to sources that he uses to find qualified—in his view, qualified—candidates for the federal courts. So when he wants to find people who think as he thinks or who will become judges in the mold that he would like to see, he goes to those sources to find the candidates—and, obviously, doesn’t vet them too well. As you already pointed out, a couple of them have no business on any trial court or any appellate court, because they have no judicial experience whatsoever, no courtroom experience.
– New York Times, Reverend Bishop William Barber, co-chair of the Poor People’s Campaign, wrote about Trump’s nomination of Thomas Alvin Farr, a protégé of Senator Jesse Helms, to serve on the U.S. district court for the Eastern District of North Carolina. Barber writes about Farr’s connections to white supremacist causes and writes, quote, “Mr. Farr’s former law partner, Thomas Ellis, was Mr. Helms’s top deputy for decades. He also served as a director of the Nazi-inspired, pro-eugenics Pioneer Fund and used funding from that organization to create and bankroll a network of interlocking organizations to support Mr. Helms and other political candidates who espoused the notion of a superior white race and opposed civil rights.”
– “African-Americans seeking to have their rights protected under federal law have much to fear if Mr. Farr takes the bench. This is particularly the case in the Eastern District of North Carolina, which covers an area where about half of the state’s African-American residents live and is often referred to as its Black Belt.”
President Bush had nominated Thomas Alvin Farr in 2006, but he didn’t go through. I mean, then, even then, that Congress said, “No way. This person should not be on the federal bench.” Now he comes back, redux—what is it?—12 years later, and suddenly he’s going to be acceptable.
Now, what has changed? What has changed is we don’t have the filibuster rule. This is very important to explain. It used to take 60 votes, but now it takes only a bare majority. Now, that changed under the Democrats in 2013, but they had to do it. They had to use that nuclear option, because their picks were being blocked in the Senate. And while they knew they did that at their own peril, that it would come back to haunt them, there are many who believe, even if they hadn’t done it, it would be done now. The Republicans would do the same thing. So, six of the Trump judges have already been confirmed with far less than 60 votes. They would never have been confirmed before. And that’s going to happen with Farr, if he’s confirmed.
Now, the other thing I would say about Farr is that it’s a district court nominee. That’s the lowest court. That’s the trial court. Thankfully, right now, he’s not being nominated for an appellate court. But it wouldn’t surprise me, if he is confirmed, in the next two, three years, they’ll put him up for the circuit court. I have no doubt about that. This is a person who does not belong on the federal bench. His views are unacceptable to the vast majority of Americans. That’s the problem with the Trump picks. They’re simply not mainstream people. They are extremists. And this man is an extremist who doesn’t belong on the federal bench, does not understand fairness and justice. And he’ll turn the clock back. He was a great supporter of North Carolina’s voter suppression law, which the circuit reversed and said it targeted, with almost surgical precision, against black voters. So this is a dangerous person to put on the bench.
While presidents always pick people who would reflect their own values, there was a lot of consensus. There was a lot of bipartisan support. Most district court nominees were approved in the nineties. That is, 90 votes, 95, 93, 90-something. The vast majority were approved bipartisan, for the district courts, in particular. I’m sure my own vote was in the nineties when I was approved by Congress. So, we didn’t see votes of 51. We didn’t even see votes of 60. People were approved, because there was consensus. And the home state senators had a role. And they’re trying to undo that. So things have changed remarkably now. There’s no bipartisanship. It’s strictly partisan-line voting on a number of these people.
So the federal courts hear both civil and criminal cases, but that involve federal laws or the Constitution. The state courts do local things, like local crime, domestic relationships, wills, real estate, housing, landlord-tenant court—very different kinds of issues.
So let’s turn back to the federal courts. First of all, the federal courts are lifetime appointments. They are not elected. They’re appointed by each president. And people do tend to stay 30 years, on average. They hear terrorism cases on the criminal side. They hear political corruption cases. They hear narcotics cases, drug cases, but so do the state courts, so that can be a little bit of both. But they have a broader focus on the criminal side. On the civil side, of course, they hear civil rights cases that arise under the Constitution. And as you know, I’ve handled some of those myself over the years. So, it’s a very different court.
Now, you also asked me to explain the trial courts and the appellate courts. So, the trial courts, which is what we call the lowest court, the district court, it doesn’t mean we’re lowly, it just means we’re first. So, the district courts try the cases. The case is filed there. The case is tried there. And the district court really sets the stage. I think it’s the best job of all,
That’s where I served, for 22 years. And you get to write the first opinion. You really shape the case. Then the circuit court reviews what you did, but they can only deal with the record you created. So they sit on top of you, and they review what you do. And as I said before, they write maybe 60,000 decisions, and the lower courts write maybe 355,000.
OK, then, from there, you get to the Supreme Court, but only extremely rarely, since they average between 65 and 80 cases a year now. Imagine the odds of ever being heard in the Supreme Court. So, really, the courts of appeals are the last stop. Now, there are 13 of them. And when President Obama took office, 10 of those 13 had a majority of Republican-appointed judges. But when he left, only four were majority Republican-appointed. In other words, he shifted the balance of the circuit courts. What we’re going to see now is a shift back. So this rapid effort to get circuit judges confirmed, that’s what President Trump has done, more than any—12 have been confirmed for the circuit courts—is to shift that balance as fast as possible.
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Shira Scheindlin
former United States district judge for the Southern District of New York. She is a member of the executive committee of the board of the Lawyers’ Committee for Civil Rights Under Law.
— source democracynow.org