The Next President Will Cement Or Erase Conservative Control Of The Courts

The Next President Will Cement Or Erase Conservative Control Of The Courts

The next president will likely solidify a lasting majority on the courts of appeals, either cementing President Trump’s judicial legacy or largely undoing it.
Mike Davis
By

Our nation’s courts are nearing a tipping point. During President Trump’s first term, he has achieved a slim conservative majority on the U.S. Supreme Court (5 of 9) and has evened the score in the critically important federal courts of appeals, which are the final stop for more than 99 percent of all federal appeals.

Now, data compiled by the Article III Project (A3P) shows that the next president will likely solidify a lasting majority on the courts of appeals, either cementing President Trump’s judicial legacy or largely undoing it.

On the Supreme Court, four justices could conceivably be replaced before 2024. Justice Ruth Bader Ginsburg, 87 and in poor health, would likely retire on day one of a Biden administration, and would likely be replaced in a second Trump term. Justice Stephen G. Breyer, 81, is also likely to retire soon. Conservative stalwarts Justices Clarence Thomas and Samuel Alito are in their 70s.

This means President Trump could potentially shift the Supreme Court to a 7–2 Republican-appointed majority, and a President Biden could achieve a 6–3 Democrat-appointed majority. Six Democrat-appointed justices would result in Supreme Court opinions that radically undermine our Constitution.

Worse, Biden’s running mate, Sen. Kamala Harris, has even threatened to “pack” the Supreme Court, expanding it to 11 or more seats and appointing new liberal activist justices. The number of justices has not changed in more than 150 years, since right after the Civil War. Court-packing is a radical assault on judicial independence. Indeed, even Justice Ginsburg, the lioness of the left, took the unusual step of publicly denouncing this radical scheme.

The situation on the federal courts of appeals is similar. Before Trump’s presidency, Republican-appointed judges were a majority on four of the 13 appellate “circuits”: the 5th, 6th, 7th, and 8th, together covering Texas, Louisiana, Mississippi, and most of the Midwest and Great Plains states. Judges appointed by President Trump have “flipped” the balance of three more circuits: the 2nd, 3rd, and 11th, together covering New York, New Jersey, Pennsylvania, and much of the South.

New data compiled by A3P shows that if President Trump and a Senate Republican majority are reelected, they could flip each of the remaining six circuits (D.C., Federal, 1st, 4th, 9th, and 10th) to conservative majorities simply by replacing Democrat-appointed judges who will be eligible to take “senior status,” a form of partial retirement. The fact that President Trump could even flip the infamously liberal, San Francisco-based 9th Circuit is monumental.

Thanks to President Trump’s record-breaking success getting conservative judges confirmed in his first term, Democrats now hold a slim three-seat majority on the 9th Circuit, down from an 11-seat lead when President Obama left office. Ten of that court’s 16 Democrat appointees will be eligible for senior status by January 2023, and President Trump would only need to replace two of them to flip the 9th Circuit—something conservatives did not dare to dream of before the Trump era.

On the other hand, if Biden and Harris are elected, they could reverse the gains Trump made during his first term simply by replacing Republican-appointed judges who are eligible for senior status. Biden-Harris could shift all but four circuits (9 of 13) back to a majority of Democrat appointments.

Biden and Harris could even achieve up to a seven-seat majority of Democrat appointees on the D.C. Circuit, which is particularly important because it hears most cases involving federal administrative agencies and protects everyday Americans from The Swamp. This is the same circuit that recently went out of its way to condone the lawlessness of Judge Emmet Sullivan, a Clinton-appointed judge who has disgraced the federal judiciary by violating the separation of powers and unfairly railroading Michael Flynn in highly irregular and partisan court proceedings.

Biden could also establish a 10-seat lead on the D.C.-based Federal Circuit, which handles all appeals in the country involving patents and trademarks (goodbye, intellectual-property rights and innovation), and could reestablish liberal dominance of the 9th Circuit (goodbye, borders). Even conservative strongholds like the Texas-based 5th Circuit would have their conservative majorities badly eroded.

President Trump’s picks for circuit judgeships are some of the most qualified nominees ever fielded by a president. Don’t simply take my word for it. Left-wing commentator Ian Millhiser wrote the following gems back in February:

  • “In less than three years as president, President Trump has done nearly as much to shape the courts as President Obama did in eight years.”
  • “Trump hasn’t simply given lots of lifetime appointments to lots of lawyers. He’s filled the bench with some of the smartest, and some of the most ideologically reliable, men and women to be found in the conservative movement.”
  • “His picks include leading academics, Supreme Court litigators, and already prominent judges who now enjoy even more power within the judiciary.”
  • “In other words, based solely on objective legal credentials, the average Trump appointee has a far more impressive résumé than any past president’s nominees.”
  • “There is simply no recent precedent for one president having such a transformative impact on the courts.”

Biden’s nominees for the appellate courts would be no better than Obama’s. In fact, they would probably be a lot worse. Unlike conservatives, liberal judges do not even try to use objective methods like textualism (what does the law actually say?) and originalism (what did those words mean to the public when that law was enacted?) when they interpret our Constitution and other laws. Liberals simply care about power, including controlling all of us.

The stakes could not be higher. A Biden presidency would mean the radical reversal of President Trump’s greatest accomplishment, installing federal judges who are committed to safeguarding the original meaning of the Constitution and consistently following the law instead of rewriting it.

We need federal judges who understand that their limited but critical role in protecting everyday Americans from government overreach and mob rule. President Trump’s judges have done this; the Biden-Harris judges will not. Make no mistake, our nation’s courts hang in the balance this November.

Mike Davis is the founder and president of the Article III Project (A3P), which advocates for President Trump’s judicial nominees and judges. Last Congress (2017-19), Davis served as the chief counsel for nominations and staff lead for Justice Kavanaugh’s confirmation, along with all other Article III federal judges and senior Justice Department officials. Davis previously clerked for Justice Neil M. Gorsuch, both on the Supreme Court and Tenth Circuit.

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