There are approximately 150 federal district and appeals court vacancies in the nation. Although President Trump has appointed and gained Senate approval for more than two dozen justices, the number of vacancies has risen. A few weeks ago, Trump made note of the many holes in the judicial branch while promising speedy action to deal with the problem.
In mid-March, Mr. Trump discussed his opportunity to reshape U.S. courts when he told a gathering of Ohio supporters of his intention to make good appointments. “We’re going all out,” he said. He described his opportunity to fill many vacant federal judicial posts as a “gift from heaven [that is] world-changing, country-changing, USA-changing.”
Especially needing attention are vacancies that have arisen in the San Francisco-based Ninth Circuit Court of Appeals. Notorious for its damaging leftist rulings, the Ninth Circuit has jurisdiction over nine states: Alaska, Hawaii, Washington, Idaho, Montana, Oregon, Nevada, Arizona, and California. Numerous Ninth Circuit rulings have bedeviled not only the nine states where this court holds sway but the entire nation has been affected. One of this court’s leading leftists, Judge Stephen Reinhardt, passed away on March 29. His vacant seat and seven more vacancies in the 29-member Ninth Circuit, present Trump with a golden opportunity to move the nation’s most activist and leftist court toward a more conservative and constitutional stance.
Nominating federal judges is, of course, only the first of two steps to have a new judge seated. The Senate must approve a nominee. In the past, senators could block a nomination via a filibuster that would take 60 votes to overcome — a difficult hurdle. But during the Obama administration, the Senate weakened and effectively killed the filibuster process. Now only a majority will be needed to gain approval.
The Senate has also cancelled a process known as “blue slip” blockage of a judicial nominee. It allowed a senator to block approval of an appointee who resides in his or her state. A simple placing of a nominee’s name on a “blue slip” and presenting it to the Judiciary Committee Chairman was sufficient to kill nomination. But current Judiciary Committee Chairman Senator Charles Grassley (R-Iowa) has announced that he will not honor the use of this practice by any senator who might wish to block approval of a particular nominee. Senator Dianne Feinstein (D-Calif.) had already stated her intention to issue a blue slip for any Trump nominee she finds objectionable. But the Grassley move will likely terminate permanently the issuance of the infamous blue slips.
Prospects for Trump to dramatically alter the stance of the notoriously leftist Ninth Circuit and other federal courts have raised concerns among California liberals. Dean Erwin Chemerinsky who leads the University of California (Berkeley) School of Law considered deceased Justice Reinhardt his ideological equal. He now sees future setbacks for liberal judicial dominance, especially in the Ninth Circuit. Chemerinsky has stated, “With a Republican Senate and no possibility of a filibuster, [Donald Trump] can have whoever he wants on the circuit court.” He expects a “dramatic change in the Ninth Circuit.”
President Trump has an opportunity to markedly improve adherence to the rule of law throughout the nation. He should be encouraged by many Americans to do so.
John F. McManus is president emeritus of The John Birch Society. This column appeared originally at the insideJBS blog and is reprinted here with permission.
