by Chris M. Stevens
WASHINGTON, D.C. — Lasting legal legacy. Once confirmed by the U.S. Senate, federal judges serve for life, an average of 30 years. President Donald Trump, with the assistance of the Republican-controlled Senate, has begun a massive makeover of the federal judiciary.
Federal judges issue rulings which affect the daily life of Americans. While the vast majority serve as honorable judges who seek to remain impartial, they are humans with opinions and past experiences. Presidents nominate potential judges who they think will agree with their philosophy and policies. During the campaign, June 2016, then-candidate Trump told listeners of Breitbart News Radio, “We’re going to have great judges, conservative, all picked by the Federalist Society.”
Who? The 65,000 members of the Federalist Society, justices, judges, legal scholars and attorneys, proclaim a belief in ‘originalism.’ They oppose legal scholars who profess the constitution as a living, evolving document. The ‘Society’ formulates strict interpretation of the U.S. Constitution on the 18th Century intent of the Framers. Deceased Supreme Court Associate Justice Antonin Scalia, well-known as an ‘originalist,’ has been succeeded by Associate Justice Neil Gorsuch, also a member of the ‘Society’ and a vocal proponent of the legal philosophy.
One has to wonder if ‘originalism’ includes the context of legal slavery, women denied the right vote, no child labor laws, etc.
As of January 3, 2018, the Senate had confirmed several Trump nominees, but the federal judiciary still sits short-staffed with 17 vacancies at the appellate level and 124 at the district level. Trump nominees confirmed include: one U.S. Supreme Court Associate Justice; 12 for the U.S. Court of Appeals; and six for U.S. District Courts; and three judges to the U.S. Court of Appeals for Veterans Claims.
No discussion of the federal judiciary can omit the stolen U.S.Supreme Court seat. Senate Majority Leader, Mitch McConnell (R-KY) along with Chairman of the Judiciary Committee Senator Chuck Grassley (R-IA) had refused to even hold hearings for President Obama’s nominee, Appellate Justice Merrick Garland, to succeed the deceased Scalia. Ironic as the Republicans have long complained about ‘activist’ judges and yet they specifically manipulated the system to ensure someone who will do ‘their brand of activism’ would get the Supreme Court seat.
How critical a role do the federal courts play? The U.S Supreme Court, while the final level of legal interpretation and appeal, only hears between 60 and 80 cases a year. Thus, 99.9 percent of all federal trials and appeals go to the District Court and then the Appellate level for final adjudication.
Statistics. In 2015 the U.S. Supreme Court heard 82 cases. The U.S. Court of Appeals heard 52,000 and the U.S. District Courts heard 353,000; 2016 Supreme Court 69 cases, Court of Appeals, 58,000, and District Court 355,000 cases.
And with so few cases moving on to the Supreme Court, the rulings from one of the 13 Appellate Courts set precedent. The U.S legal system operates on the concept of “stare decisis”, i.e. judges respect and remain bound by precedent unless and until a law is revised by the U.S. Supreme Court.
Note. Different Appellate Courts can issue different rulings which then set precedent only for the region of their jurisdiction. As an example of the far-reaching impact, the Ninth Circuit Court of Appeals holds jurisdiction over 20 percent of the U.S. population including: Alaska, Arizona, California, Guam, Hawaii, Idaho, the Mariana Islands, Montana, Nevada, Oregon, and Washington.
What types of legal cases or issues do the federal appellate and district courts address? Workplace rules, voting rights, privacy, sentencing guidelines, prisoner rights, immigration, desegregation of schools and housing, employment discrimination, and many more.
Let’s take a look at the functions of the various courts.
U.S. District Courts, established by an act of Congress, not the U.S. Constitution, serve as both the first stop and the trial court for the federal system. Each state, plus the District of Columbia, and Puerto Rico, include at least one District Court, which hears both civil and criminal cases that involve either federal law, or the constitution. The scope of these courts includes civil rights under the Constitution, and terrorism, political corruption and narcotics under the criminal statutes.
Note. State courts do local issues, e.g. crime, wills, real estate, etc. so there can be overlap.
U.S Court of Appeals, an Article III legal entity established by the U.S. Constitution, hear cases decided by U.S. District Court. They do not re-try the case, but rather examine the process, procedure and record of what happened at trial. If they find errors, they can reverse the ruling, or send it back to the District Court for another trial, or re-sentencing. Thus, an employee can file a federal lawsuit alleging workplace discrimination and win at the District level. The employer appeals and the ruling from the Appellate Court then acts as the final word and precedent. Note. Sometimes courts issue a ruling which they specifically state does not set precedent, but only applies to the case under appeal.
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Trump and the Republicans have managed to confirm so many judges thanks to earlier obstruction. The reluctance of Republicans to confirm President Obama’s nominees throughout his entire term had pushed Democrats to take drastic action. In November of 2013 Senator Harry Reid (D-NV), at the time majority leader, enacted a change in the rules: Senators could no longer use a filibuster to stop a vote for nominees for a federal judgeship. Prior, the Senate had to generate 60 votes to stop a filibuster and then conduct a vote for confirmation. This high threshold protected the public from inept, inexperienced and ideological judges. Either political party could prevent ‘bad’ judges as nominees had to win bi-partisan approval from the senators. (Reid’s rule change did not apply to Supreme Court nominees, which Republicans changed to confirm Gorsuch).
Note. The Republican obstructionists had stopped confirmation on all but 22 federal judges the final two years of President Obama’s administration, the fewest since President Harry Truman.
Now, with no filibuster, partisan senators can confirm judges with a professed opinion that runs counter to the general public, as a simple majority is all that is needed.
Examples. For the first time since 2006 the American Bar Association Standing Committee on the Federal Judiciary rated nominee Leonard Steven Grasz (confirmation vote 50 – 48), now a Justice of the 8th Circuit Court of Appeals, St. Louis, MO and Fargo, ND, as “not qualified.” The ABA based their evaluation on his previous expressions of not adhering to the principle of “stare decisis.”
Two other Trump nominees won Senate confirmation with far less than 60 votes. John Bush (51 – 47), now a Justice of the Sixth Circuit Court of Appeals in Cincinnati, has compared the Dred Scott decision to Roe v. Wade and blamed “activist judges.” Amy Coney Barrett (55 – 43), a Notre Dame law professor, now a Justice on the Seventh Circuit Court of Appeals in Chicago, also has conflicts with “stare decisis” and doesn’t think justices need to follow precedent if they believe the decision on the case was wrong in how it was decided.
Trump has resubmitted 21 nominations that expired at the end of 2017. The ABA has rated two, Charles Goodwin, nominee for U.S. District Court for the Western District of Oklahoma, and Holly Teeter, nominee for U.S. District Court for the District of Kansas as “not qualified”. Goodwin was cited for his poor work habits and Teeter for her lack of trial experience. Note. No nominee submitted by President Obama earned a “not qualified” rating.
Should workers be worried? How about union members? President Trump openly proclaimed his “100 percent” agreement with right-to-work (for less) during the presidential campaign. Trump also owns a significant portion of a hotel in Las Vegas actively opposing union organizing. Will Trump nominate people for federal courts that also oppose organized labor? Or that do not believe in worker’s rights? Do the senators even ask those questions of the nominees?
Your vote matters far beyond the office of president. Pay attention and stay tuned.