Prospects for the U.S. federal courts

President Trump’s nomination of Amy Coney Barrett to fill the Supreme Court seat left vacant by the recent death of Justice Ruth Bader Ginsburg has been controversial, particularly in light of the Republican-controlled Senate’s refusal to consider President Obama’s nomination of Merrick Garland to fill the seat left vacant by the death of Justice Antonin Scalia in February 2016.  Much attention has been focused on what the potential impact will be of the Barrett nomination, along with President Trump’s appointments of Justices Gorsuch and Kavanaugh, on the direction of the Supreme Court.

Lasting footprint on the federal courts

Less attention has been given to the Trump Administration’s impact on the composition of the lower federal courts: the District Courts in which cases are tried and the Circuit Courts of Appeals that decide appeals from the District Courts and are the final arbiters of most federal cases, which never reach the Supreme Court. Those judicial positions are all filled by the President with the “advice and consent” of the Senate, meaning that the President’s nominees are appointed only if confirmed by the Senate.

Barrett is currently a Judge on the 7th Circuit Court of Appeals. The seat she holds on that court was vacant when President Trump was inaugurated – and had been vacant for over a year – because the Senate had refused to consider President Obama’s nominee for the vacancy. That was consistent with the Senate’s approach to judicial nominees over the last two years of the Obama Administration.

During these final two years, the Senate confirmed fewer than 30% of former President Obama’s judicial nominees. (By way of comparison, during the preceding four decades, the Senate approved approximately 80% of presidential judicial nominees.) As a result, when Trump was inaugurated, there were 103 vacancies on the federal District and Circuit Courts. Thanks to those vacancies, and to Senate Majority Leader Mitch McConnell’s push to expedite the “advice and consent” process, Trump appointees now make up 24% of the judges on the federal courts.

The Trump administration has focused in particular on the Circuit Courts of Appeals, which decide far more cases than the Supreme Court and therefore exercise considerable influence on the interpretation and application of federal law. To date, Trump has appointed 53 judges to the Courts of Appeals, far more than any president since Jimmy Carter (who appointed 54, thanks to a 33% expansion of the federal judiciary during his term). As a result, Republican appointees now make up the majority of judges on over half the federal circuit courts.

The future of the judiciary

The majority of the Trump-appointed judges tend to be ideologically conservative. And they are young: with one-third under the age of 45 when they were nominated, they are likely to serve and shape the courts they sit on for many years to come.

Over time, we can expect these judges to have a conservative influence not only on the social and political issues that come before them (abortion, gun control and religion, for example), but also on the vast range of business issues governed by federal laws and regulations: antitrust, securities, employment discrimination, trade and foreign investment, environmental controls, food and drug safety, and so on. Many analysts who have studied the background of the Trump judicial nominees (and President Trump himself) predict a more conservative, free-market, and  lean regulatory approach to such issues in the federal courts. In addition, we may see an impact on procedural issues, narrowing the use of class actions, encouraging early dismissal of claims, and limiting the interpretation of federal court jurisdiction, for example.

Still, it is worth bearing in mind that many cases litigated in the federal courts, such as contract disputes, intellectual property claims, bankruptcies, property damage and personal injury claims, have little or no ideological baggage. Also, the Courts of Appeals hear cases in panels of three judges, and most decisions are reached by consensus with no dissent. So any change would be incremental.

Nevertheless, it seems clear that, whatever results the coming election may have on the executive and legislative branches, the judicial branch will experience a long-term drift in a conservative direction.

To discuss these issues, please contact the author(s).

This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.

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