The political world focused Tuesday night on President Donald Trump’s live-from-the-White House announcement of his nominee for the U.S. Supreme Court, federal appeals court Judge Neil Gorsuch of Colorado.
But Trump has the chance to remake the federal judiciary far beyond the high court, partly because of the same outrageous Republican obstructionism that stopped Barack Obama’s nominee, respected Judge Merrick Garland, from even getting a hearing for nearly 10 months.
Trump will immediately get to fill 116 vacancies among 890 total federal judicial positions. The lifetime appointments include six trial-level U.S. District Court judgeships in California and four seats on the influential 9th U.S. Circuit Court of Appeals, based in San Francisco, that oversees cases from California and eight other Western states.
We were just reminded again of the crucial role of federal judges when five courts stepped in to protect some caught in the dragnet of Trump’s executive order on immigration and refugees. And we were reminded how important it is for these judges to uphold the law and Constitution, no matter who appoints them, when Trump sacked acting Attorney General Sally Yates after she questioned the legality of his order and told Justice Department lawyers not to defend it.
Sen. Dianne Feinstein of California, the top Democrat on the Senate Judiciary Committee, announced Tuesday she will oppose Sen. Jeff Sessions, Trump’s nominee for attorney general, because she has “no confidence” that he will be independent enough from the White House.
Many of Trump’s actions will likely end up before federal judges, who are an important line of defense against violations of our civil liberties. For instance, in July, appeals court judges, including some Republican appointees, blocked discriminatory voting restrictions in North Carolina, Texas and Wisconsin.
Based on his campaign promises and other statements, Trump will try to stack the federal bench with judges who favor gun rights, oppose abortion rights, believe in broader presidential authority and boast the seal of approval from conservative advocacy groups.
Trump gets to fill the Supreme Court vacancy left by Antonin Scalia’s unexpected death last February because Republicans led by Mitch McConnell of Kentucky stonewalled Garland until Obama left office.
Overall in the last two years of the Obama presidency, when Republicans held a Senate majority, they only confirmed 20 federal judges, the fewest in 28 years, according to one count.
Even when they were in the minority in the Senate, Republicans stalled highly qualified Obama nominees and used them as leverage in unrelated budget decisions, even as Americans had to wait longer to be heard in federal courts.
Senate Democrats became so frustrated they changed the rules. While it still takes 60 votes to end debate and vote on Supreme Court nominees, it only requires a simple majority of 51 votes to proceed on other judicial nominations.
The rules change helped Obama eventually appoint some 330 federal judges. But it also sets the stage for Trump and Republicans, who now have 52 seats in the Senate, to flip the judiciary back in a more conservative direction. Feinstein and other Senate Democrats have their work cut out to hold the line against extremist ideologues.
Especially with this president, federal judges can be a check against executive power, but only if they are independent and courageous enough.