After the death of Antonin Scalia on February 13, 2016, Republican Senate leaders promptly announced that they would not consider any Supreme Court nominee from President Barack Obama because the choice of the next justice should be left to the new president following the November elections with the opportunity for voters to weigh in on filling the Scalia vacancy. That move was unprecedented: never before had the Senate divested a sitting president of his Supreme Court appointment power. It was also risky. The strategy depended upon a high level of party discipline, but public pressure risked moderate Republicans defecting from the plan, particularly once Obama named a candidate—as he did on March 16, 2016, by nominating Merrick Garland, the Chief Judge of the D.C. Circuit and a clear compromise choice.
Senate Republicans also risked an electoral outcome that would lead to the appointment of somebody they would find less palatable than Garland. For most of the presidential election season, Hillary Clinton seemed on a fast track to the White House. Had she won, she might have re-nominated Garland—or she might have picked somebody else for the Scalia seat. There was also uncertainty about who the Republican Party’s own presidential nominee would be. In March, 2016, five contenders remained: Ben Carson, Ted Cruz, John Kasich, Marco Rubio, and Donald Trump. If Trump—a party outsider with no prior political experience and a promise to unsettle Washington—were to oust the other contenders and win the presidency, he might name a maverick to the Court.
Further, Senate Republicans, in the spring of 2016, were betting that they would hold onto the Senate. Had they won the White House but lost the Senate, the new Democratic-controlled Senate could have confirmed Garland before inauguration day and even confirmed another Obama nominee if Justice Breyer or Ginsburg were to retire in the short window before the new President took office. Finally, of course, there could well have been a tit-for-tat: if Democrats had won the Senate but lost the White House, they could have taken the position that the choice of the new justice belonged to Obama and refused to proceed with any hearings or a vote on nominees from the newly elected Republican President.
Despite these risks, the Republican strategy worked. Indeed, in retrospect, the strategy might easily be seen as a stroke of political genius. Party discipline held: while some Republican Senators held courtesy visits with Judge Garland (including to explain that their decision not to proceed on any nomination had nothing to do with Garland personally), Garland received no process at all and his nomination expired.
After Trump took office, he named Neil Gorsuch, a circuit-court judge any Republican President might have picked. The Senate, which remained safely in Republican hands, efficiently moved the nomination to a vote despite complaints from Democrats about a stolen seat; did away with the filibuster for Supreme Court nominees (thus teeing up easy confirmation for future Trump nominees); and Gorsuch now sits on the highest court where he will likely remain for three or more decades. When Republicans rolled the dice in February, 2016 they could not have hoped for a better outcome.
The appointment of Justice Gorsuch is also President Trump’s biggest success in his first one hundred days in office and doubly important as such because Trump—who clearly prefers unilateral action—required the cooperation of the Senate to achieve it.
Looking ahead, the Gorsuch appointment strongly indicates that should any of the other current justices resign or die during these next four years, Trump will easily be able to fill those positions so long as he draws from his campaign list of 21 (from which he promised to pick a justice for the Scalia seat) or chooses other individuals of a similar stripe, and so long as (as is likely) Republicans hold their majority in the Senate after 2018. For Democrats, whose complaints about the blocking of Garland and concerns about Gorsuch remained just complaints and concerns, stopping additional Trump nominees to the Court seems, at this point, almost impossible.
Of course, the Supreme Court is not the only court that counts. The Supreme Court decides very few cases and so, for most litigants, the lower federal courts (or the state courts) are the courts of last resort. Here, too, Trump has taken office with an unusual opportunity.
There are 890 Article III judgeships, including nine members of the Supreme Court. (Figures in this paragraph are based upon current (as of April 19, 2017) and historic data compiled by the Administrative Office of the U.S. Courts.) When he left office, President Obama had filled 329 of those judgeships (about 37%); before him, President George W. Bush had filled 327. When Bush left office, nine of the twelve circuit courts had a majority of republican appointees. When Obama left office, eight of the twelve had a majority of Democratic appointees. There was, in other words, a pendulum effect over the course of the two two-term presidencies. But, Trump will likely do better than Obama and Bush for two reasons. First, there are currently more lower court vacancies. At the beginning of Obama’s first term, there were fifty-three vacancies on the federal circuit and district courts. When Trump took office, in January, 2016, there were 111 vacancies. Trump’s relative windfall reflects, in part, Senate inaction during the Obama presidency. Fifty-eight individuals Obama had nominated to vacant positions on the lower federal courts did not receive a Senate hearing or a floor vote, and so those positions now remain open for Trump to fill. Second, there are more older judges now than there were when Obama took office. While it is hard to predict how many vacancies will arise because of retirements, deaths, or judges taking senior status, between January and April of 2017 alone, an additional sixteen vacancies have already arisen and another fifteen are scheduled to occur as a result of announced retirements or taking of senior status. My own back-of-the-envelope calculations suggest that if all of the judges who are already eligible for, or who will become eligible for, senior status in the first term of Trump’s administration take it, then Trump will have the opportunity to appoint approximately 50% of the nation’s lower-court judges in his first term.
So far, though, things have begun slowly. Trump has made just one lower court nomination: to elevate district court judge Amul Thapar (who was on candidate Trump’s list of 21) to a vacancy on the Sixth Circuit. The Senate Judiciary Committee held a hearing on this nomination on April 26, 2017. (Updated information on the Thapar and other nominations is available at the Senate Judiciary website.) While Trump has been very slow in filling key positions in his own administration, the Gorsuch process suggests that the institutional mechanisms (including reported reliance upon outside organizations to identify and shepherd candidates) are in place to ensure quick action on vacant Article III seats. We should, therefore, expect a slew of nominations in the coming months. We might also expect Senate Democrats to seek ways to slow down the process by, for example, insisting on full, individualized hearings; demanding responses to extensive questions; calling multiple witnesses during hearings; and so on. Yet, this is a train that is not easily stalled or stopped.
Apart from issues of appointment, Trump’s overall relationship with the judiciary bears mention. As a candidate, Trump made numerous odd statements about judges and judging. He repeatedly questioned the impartiality of District Judge Gonzalo Curiel (because of his “Mexican heritage” and because “he’s a Mexican” and “we’re building a wall between here and Mexico”) in the fraud lawsuit against Trump University. In a 60 Minutes interview last November, President-elect Trump took the unusual position that Obergefell (recognizing a right to same-sex marriage) is settled law and should stay as such but Roe (recognizing a right to obtain an abortion) is not settled and should be overturned. After Senior District Judge James Robart issued a TRO blocking President Trump’s immigration executive order, Trump referred by tweet to him as a “so-called judge” and insinuated that if anything bad happened to the country it would be the judge’s fault. At the same time, various courts, including the U.S. Court of Appeals for the Ninth Circuit, evaluating the immigration executive orders, have referred to statements made by candidate Trump as evidence of unconstitutional motive. In general, we distinguish the presidency from the election process that fills the office. Both Trump and the courts have blurred that line.
Perhaps the best evidence that this is not “business as usual” is the extraordinary recent exchange between the Chief Justice of California and the Trump administration on immigration enforcement. In response to reports that federal immigration agents had arrested individuals following their appearances (on other matters) at California courthouses, Chief Justice Tani G. Cantil-Sakauye wrote Attorney General Jeff Sessions and Secretary of Homeland Security John F. Kelly that she was “deeply concerned . . . that immigration agents appear to be stalking undocumented immigrants in our courthouses to make arrests.” Explaining that “[c]ourthouses should not be used as bait in the necessary enforcement of our country’s immigration laws,” Cantil-Sakauye concluded her letter by “respectfully request[ing] that you refrain from this sort of enforcement in California’s courthouses.” In their response, Sessions and Kelly called Cantil-Sakauye’s reference to stalking as “troubling” and provided the legal definition of the term; pointed out that immigration-related arrests at courthouses are a result of California counties and cities “hindering” arrests in state prisons and other settings; and warned that immigration officers “will . . . meet the challenges to effective law enforcement, including state and local policies that hinder their efforts.”
Both sides are open to obvious criticisms: there is no reason federal officials cannot enter a state courthouse to make an arrest; when immigration enforcement depends upon state cooperation, sending the Chief Justice of California the legal definition of stalking is hardly productive. More significantly, the willingness of a state’s highest judge to become so quickly involved in federal law-enforcement strategies and the administration’s accusatorial pushback both point to a basic tension between the judiciary and the Trump administration. That tension is likely to produce further incidents in which governmental actors cross the traditional lines of separated powers to make a point or protect an interest.
* Professor of law, Lynn H. Murray Faculty Scholar in Law, and Co-Director of the Program in Constitutional Theory, History and Law, University of Illinois College of Law.