Trump unable to reshape judiciary
Posted: Fri Jan 26, 2018 9:33 am
Not exactly his fault...but here's an analysis on how any POTUS is stifled from changing over the judiciary on a national basis.
Who has greater control of national policy right now: Senators from Hawaii, California and Washington, or district judges Alsup, Robart, Watson, Beetlestone and Kollar-Kotelly, who have in the past year thwarted the travel bans, mandated the indefinite continuation of DACA, blocked HHS religious exemptions to the ACA’s birth control requirements, invalidated refugee vetting and required the military to accept new transgender recruits?
There were certainly broad and questionable injunctions during the Obama presidency, but they spiraled out of control only in his last two years and were never as numerous or personally antagonistic. There have been nineteen national injunctions issued since the inauguration.
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A full 18 percent district judgeships are vacant—123 out of 677. By my count, 40 took senior status between 1/20/2017 and 1/20/2018. Extrapolating to the next three years, we’d expect around another 120 seats to open up before 1/20/2021.
Since Trump has already appointed 10 district judges, we can place an upper bound on his first-term influence at around 253/677 ≈ 37.3%.
Of course, this is a serious overestimate for several reasons and the numbers, while encouraging, don’t fully capture the practical challenges. (1) I suspect that Trump experienced a first-year bump, with many Bush judges retiring due to change in administrations. (2) There are simply too many vacancies to fill in three years—the GOP only confirmed 10 district judges in a whole year. (3) Senate procedure and blue slips make confirmations take forever.
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McConnell and Grassley have a choice: preserve Senate traditions that, in all likelihood will die with the next Democratic president, or use Trump’s presidency to produce tangible and durable benefits for conservatives on the federal bench.