Law & the Courts

Justice Thomas vs. Justice Breyer on the Death Penalty

Justice Breyer’s statement on Tuesday regarding the denial of certiorari in a death-penalty case (Reynolds v. Florida) elicited a noteworthy response from Justice Thomas.

In his statement, Justice Breyer repeated several concerns that he has expressed before. I’ll highlight three of them here: (1) that “lengthy delays—made inevitable by the Constitution’s procedural protections for defendants facing execution—deepen the cruelty of the death penalty and undermine its penological rationale”; (2) that the jurors (in this or other cases in which the Court has recently denied review) might not have had sufficient information to “have made a ‘community-based judgment’ that a death sentence was ‘proper retribution’”; and (3) that the constitutionality of the death penalty should be reconsidered.

Here is what Justice Thomas had to say in response (some citations and quotations marks omitted):

[1] Justice Breyer’s first concern is “that the death penalty might not be administered for another 40 years or more” after the jury’s verdict. That is a reason to carry out the death penalty sooner, not to decline to impose it. In any event, petitioner evidently is not bothered by delay. Petitioner has litigated all the way through the state courts and petitioned this Court for review three separate times. He can avoid “endur[ing]” an “unconscionably long dela[y]” [Breyer’s words] by submitting to what the people of Florida have deemed him to deserve: execution. It makes a mockery of our system of justice for a convicted murderer, who, through his own interminable efforts of delay has secured the almost-indefinite postponement of his sentence, to then claim that the almost-indefinite postponement renders his sentence unconstitutional.

It is no mystery why it often takes decades to execute a convicted murderer. The labyrinthine restrictions on capital punishment promulgated by this Court have caused the delays that Justice Breyer now bemoans. As “the Drum Major in this parade” of new precedents [quoting Justice Scalia in Glossip v. Gross], Justice Breyer is not well positioned to complain about their inevitable consequences.

[2] On the night of July 21, 1998, petitioner Michael Gordon Reynolds murdered nearly an entire family. While the father, Danny Ray Privett, relieved himself outside the family’s camping trailer, petitioner snuck up behind him and “viciously and deliberately battered [his] skull with a piece of concrete.” Petitioner would later explain: “‘[W]ith my record’”—which included aggravated robbery, aggravated assault, and aggravated battery—“‘I couldn’t afford to leave any witnesses.’” So petitioner entered the trailer, where he brutally beat, stabbed, and murdered Privett’s girlfriend, Robin Razor, and their 11-year-old daughter, Christina Razor. Robin “suffered multiple stab wounds along with multiple blows to the side of her face and a broken neck resulting in injuries to her spinal cord.” She desperately fought back, suffering “significant defensive wounds” and “torment wounds”—shallow slashes that occur when “the perpetrator tak[es] a depraved, measured approach to the infliction of the injury and tak[es] pleasure in his cruel activity.” Eleven-year-old Christina also resisted, suffering “blunt force trauma to her head, a stab wound to the base of her neck that pierced her heart, and another stab wound to her right shoulder that pierced her lung and lacerated her pulmonary artery.” Only petitioner knows whether Robin had to watch her daughter die, or whether Christina had to watch her mother die. “Regardless, in the close confines of that cramped camping trailer, Christina Razor, in great pain and fear, was forced to fight a losing battle for her life knowing that either her mother had already been killed and she was next or that after Reynolds killed her, he was sure to end her mother’s life.” “For a child to experience the fear, terror and emotional strain that accompanied Christina Razor as she fought for her life, knowing full well that she was fighting a losing battle, is unimaginable, heinous, atrocious and cruel.” “Christina was found not wearing any underwear,” and petitioner’s DNA was matched to both a pubic hair and Christina’s underwear, both found near her body….

Justice Breyer worries that the jurors here “might not have made a ‘community-based judgment’ that a death sentence was ‘proper retribution’ had they known” of his concerns with the death penalty. In light of petitioner’s actions, I have no such worry, and I write separately to alleviate Justice Breyer’s concerns.

[3] Justice Breyer final (and actual) concern is with the death penalty itself. As I have elsewhere explained, it is clear that the Eighth Amendment does not prohibit the death penalty. The only thing “cruel and unusual” in this case was petitioner’s brutal murder of three innocent victims.

Law & the Courts

This Day in Liberal Judicial Activism—November 16


1993—In Steffan v. Perry, a trifecta of Carter appointees on theD.C. Circuit—Abner J. Mikva, Patricia M. Wald, and Harry T. Edwards—rules that Department of Defense Directives excluding homosexuals from military service cannot constitutionally be applied to someone who has identified himself as a homosexual but who has not been shown to have engaged in homosexual conduct. Purporting to apply rational-basis review, the opinion authored by chief judge Mikva determines that it is irrational for the Department of Defense to employ the rebuttable presumption that (in Mikva’s summary) “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.” One year later—after Mikva’s resignation—the en banc D.C. Circuit reverses Mikva’s ruling (with Wald, Edwards, and Clinton appointee Judith Rogers dissenting).

2009—In a unanimous per curiam opinion in Wong v. Belmontes, the Supreme Court summarily reverses the ruling by a divided Ninth Circuit panel that a murderer who had been sentenced to death received ineffective assistance of counsel during the sentencing phase of his trial. The Ninth Circuit opinion was written by arch-activist Judge Stephen Reinhardt and was joined by Judge Richard Paez. In dissent was Judge Diarmuid O’Scannlain. That’s the third time in this same case that the Supreme Court has reversed or vacated a ruling by Reinhardt (though Reinhardt can take consolation in the fact that one overturning was by a 5-4 vote and another was a “GVR”—an order granting, vacating and remanding in light of an intervening ruling by the Court).

Among other things, the Court states that it “simply cannot comprehend the assertion by the Court of Appeals that this case did not involve ‘needless suffering’”:

The jury saw autopsy photographs showing Steacy McConnell’s mangled head, her skull crushed by 15 to 20 blows from a steel dumbbell bar the jury found to have been wielded by Belmontes. McConnell’s corpse showed numerous “defensive bruises and contusions on [her] hands, arms, and feet,” which “plainly evidenced a desperate struggle for life at [Belmontes’] hands.” Belmontes left McConnell to die, but officers found her still fighting for her life before ultimately succumbing to the injuries caused by the blows from Belmontes. The jury also heard that this savage murder was committed solely to prevent interference with a burglary that netted Belmontes $100 he used to buy beer and drugs for the night. McConnell suffered, and it was clearly needless.

The Court also notes that the Ninth Circuit majority, in addressing for the first time the murderer’s claim of ineffective assistance of counsel, suddenly “changed its view of the evidence.” Mitigation evidence that it had, in an earlier phase of the litigation, called “substantial” somehow became “cursory” and “insubstantial.” Whereas Reinhardt had concluded that “[t]here can be little doubt” that counsel’s performance “was prejudicial,” the Supreme Court labels “fanciful” the notion that any prejudice resulted.

2017—In a divided panel ruling (in United States v. United States District Court), the Ninth Circuit denies the federal government’s request to block an order of the district court that requires it to provide a broad array of documents relating to its decision to rescind the Deferred Action for Childhood Arrivals (DACA) policy. The majority opinion is co-authored by Judge Kim McLane Wardlaw and Judge Ronald M. Gould (each appointed by President Clinton).

In dissent, Judge Paul J. Watford (appointed by President Obama) objects that the district court’s order improperly “sweeps far beyond materials related to the sole reason given for rescinding DACA” and includes “materials [that] are deliberative in character,” possibly including communications with “high-level officials in the White House,” and thus raises “sensitive separation-of-powers concerns” that justify granting the government’s request.

One month later, a unanimous Supreme Court will vacate the Ninth Circuit’s order and will direct the district court that it “may not compel the Government to disclose any document that the Government believes is privileged without first providing the Government with the opportunity to argue the issue.”

Law & the Courts

On Lame-Duck Judicial Confirmations

Senate Majority Leader Mitch McConnell (R, Ky.) (Mike Theiler/Reuters)

Rumors swirl that the Senate, originally set to adjourn on December 14, may pack it up a week earlier. Since Majority Leader Mitch McConnell (R., Ky.) said after the election that confirming judges would be his “top priority” for the rest of the 115th Congress, let’s take stock.

We are in the longest period of triple-digit judicial vacancies since the early 1990s, when Congress created 85 new judicial positions. More than half of the current vacancies are designated “judicial emergencies” because the positions have been open so long that they’re worsening judicial caseloads.

Vacancies today are 13 percent higher than when President Trump took office; four of the last five presidents had reduced vacancies by an average of 19 percent at this point.

The Senate has so far confirmed 84 judges in the 115th Congress; the average for presidents Ronald Reagan through Barack Obama at this point was 81. As a percentage of the president’s nominees, however, the current confirmation rate of 55 percent lags behind the past average of 74 percent.

Since Congress expands the judiciary now and then, it’s useful to consider confirmation totals as a percentage of judicial positions. By this measure, the 115th Congress ranks 46th among the 58 congresses since the turn of the 20th century.

That helps put in perspective where we are today, so let’s turn to the opportunity that still remains in the 115th Congress. Trump has been making nominations, and the Judiciary Committee has been holding confirmation hearings, at a much faster clip than in the past.

As a result, 32 judicial nominees, some of whom were first nominated more than a year ago, are ready today for a final Senate vote. That’s only a few more than the 27 Obama nominees confirmed by the Democrat-led Senate after the 2014 midterm election.

A total of 116 judges for the 115th Congress sounds solid but, at 75 percent of Trump’s nominees, would still be less than under three of the last five presidents. And it would raise the 115th Congress’ rank from 46 to 31, still in the bottom half of Congresses since 1900.

In 2013, Democrats gave away the filibuster, the only sure-fire weapon for preventing confirmation of Trump judicial nominees. While they have been employing other tactics to make the confirmation process less efficient, a determined Senate majority can still make the 115th Congress a victory for an independent, impartial judiciary.

Law & the Courts

This Day in Liberal Judicial Activism—November 15


2012—By Any Means Necessary, indeed. That phrase—a shorthand for the very long name of the group challenging Michigan’s Proposal 2—aptly describes the modus operandi of the en banc Sixth Circuit majority in Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary v. Regents of the University of Michigan.

Proposal 2 is the state constitutional amendment that Michigan voters adopted in 2006 to bar state universities from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.” By an 8 to 7 vote, the Sixth Circuit rules that Proposal 2’s guarantee of equal treatment violates the Equal Protection Clause of the federal Constitution. In what Judge Danny J. Boggs, in dissent, calls an “extreme extension” of two Supreme Court rulings, the majority holds that the embedding of the nondiscrimination rule in the state constitution somehow violates the “political-process doctrine.”

In April 2014, in Schuette v. Coalition to Defend Affirmative Action, the Supreme Court will reverse the Sixth Circuit by a 6-2 vote.

2015—In Adkins v. City of New York, federal district judge Jed S. Rakoff rules that “transgender people are a so-called ‘quasi-suspect class’” and that governmental treatment of people who identify as transgender must be subject to “intermediate” judicial scrutiny.

Under Rakoff’s approach, he and other federal judges, in the supposed name of the Constitution, would be deciding such matters as whether boys who think they’re girls must be allowed to use the girls’ restrooms, locker rooms, and showers in public schools.

Law & the Courts

OLC Opinion on Legality of Designation of Matthew Whitaker as Acting Attorney General

In an opinion issued today, the Department of Justice’s Office of Legal Counsel concludes that the “constitutionality of [Matthew] Whitaker’s designation as Acting Attorney General is supported by Supreme Court precedent, by acts of Congress passed in three different centuries, and by countless examples of executive practice.”

Having authored a 2003 OLC opinion that today’s opinion cites with approval, I recognize that my assessment of the strength of today’s opinion might be taken as biased. So I will instead simply summarize the major arguments of the Appointments Clause portion of the opinion and invite the interested reader to study those arguments:

A. “[L]ong-standing historical practice and precedents” from “all three branches of [the federal] government” support the legality of Whitaker’s designation as Acting Attorney General.

1. “Since 1792, Congress has repeatedly legislated on the assumption that temporary service as a principal officer does not require Senate confirmation.” (See opinion at 8-9.)

2. Over the course of American history, Presidents have repeatedly exercised the power to select non-Senate-confirmed persons to serve temporarily as acting principal officers. While we have not canvassed the entire historical record, “our non-exhaustive survey” of the Executive Branch’s practice “has identified over 160 occasions between 1809 and 1860 on which non-Senate-confirmed persons served temporarily as an acting or ad interim principal officer in the Cabinet.”

In 1809, Jefferson designated the chief clerk of the Department of War to serve as Acting Secretary of War. In 109 additional instances during that period, chief clerks temporarily served as ad interim Secretary of State, Secretary of the Treasury, or Secretary of War. “Between 1853 and 1860 there were also at least 21 occasions on which non-Senate-confirmed Assistant Secretaries were authorized to act as Secretary of the Treasury.” “Congress not only acquiesced in such appointments, but also required a non-Senate-confirmed officer to serve as a principal officer in some instances.”

In January 1861, President Buchanan, summarizing the longstanding presidential view of the authority to designate interim officers, including non-Senate-confirmed persons, stated that the practice “has been constantly followed during every administration from the earliest period of the government, and its perfect lawfulness has never, to my knowledge, been questioned or denied.” (See opinion at 9-11.)

As to the role of Acting Attorney General: Several formal legal opinions between 1859 and 1868 were signed as “Acting Attorney General” by persons who had not been Senate-confirmed, and such a person was designated ad interim Attorney General for a short time in July 1866. (See opinion at 11-13.)

3. In 1898, the Supreme Court ruled (unanimously) in United States v. Eaton that the exercise of the authority of a Senate-confirmed office by an acting official did not transform that official into a principal officer whose appointment requires Senate confirmation. The Court “emphasized that the temporary performance of a principal office is not the same as holding that office itself,” and it “made clear that it holding was not limited … to the exigencies of Eaton’s particular appointment.”

“The Court has not retreated from Eaton, or narrowed its holding, but instead has repeatedly cited the decision for the proposition that an inferior officer may temporarily perform the duties of a principal officer without Senate confirmation.” (See opinion at 13-15.)

B. “Executive practice and more recent legislation reinforces that an inferior officer [who has not been Senate-confirmed] may temporarily act in the place of a principal officer.” Among the many examples from the presidencies of George W. Bush, Barack Obama, and Donald Trump: “In three instances, President Obama placed a Chief of Staff above at least one Senate-confirmed officer” in the line of succession for a department. Upon President Obama’s designation, non-Senate-confirmed individuals served as Acting Director of the Peace Corps, Acting Administrator of the Small Business Administration, and Acting Secretary of Labor.

“Indeed, if it were unconstitutional for an official without Senate confirmation to serve temporarily as an acting agency head, then the recent controversy over the Acting Director of the CFPB should have been resolved on that ground alone—even though it was never raised by any party, the district court, or the judges at the appellate argument.” (See opinion at 16-18.)

Law & the Courts

This Day in Liberal Judicial Activism—November 14

2003—Demonstrating their particular animus against female nominees whom they regard as judicial conservatives, Senate Democrats filibuster President George W. Bush’s nominations of Judge Priscilla Owen to the Fifth Circuit, Judge Carolyn B. Kuhl to the Ninth Circuit, and Judge Janice Rogers Brown to the D.C. Circuit. Cloture motions on each of the nominations (in Owen’s case, the fourth such motion) fail, as only two Democrats—Zell Miller of Georgia and Ben Nelson of Nebraska—vote in favor of cloture.

In May 2005—more than four years after her initial nomination—Owen is finally confirmed.  Brown is confirmed in June 2005, nearly two years after she was first nominated. Kuhl, first nominated in June 2001, withdraws her candidacy in December 2004.

Law & the Courts

President Trump Announces Neomi Rao as D.C. Circuit Nominee

Earlier today, President Trump announced his intent to nominate Neomi Rao to the D.C. Circuit.  If confirmed, Ms. Rao would fill the seat vacated by now Justice Brett Kavanaugh.

Ms. Rao currently serves as the Administrator of the Office of Information and Regulatory Affairs or OIRA (sometimes also referred to as
“the most important government office you have never heard of”).  Prior to joining the Trump Administration, Ms. Rao was a professor at Antonin Scalia Law School, where she focused her scholarship on issues involving administrative law.

Ms. Rao’s extensive experience in the field of administrative law will be an asset on the D.C. Circuit, which reviews on appeal the majority of litigation involving the various federal agencies.  Ms. Rao is also the seventh of President Trump’s court of appeals nominees to have clerked for Justice Clarence Thomas.  I look forward to seeing her confirmed.  ​

Link: Who is Neomi Rao? 

Law & the Courts

Who is Neomi Rao?

Neomi Rao is President Trump’s nominee to the U.S. Court of Appeals for the D.C. Circuit

Age:  45

Current Position:  Administrator, Office of Information and Regulatory Affairs (Washington, D.C.)


  • B.A., Yale University; highest distinction (1995)
  • J.D., University of Chicago Law School (2000); Order of the Coif; Comment Editor, Harvard Journal of Law & Public Policy; Executive Editor, Harvard Journal of Law & Public Policy (Symposium Edition)

Judicial Clerkship: Associate Justice Clarence Thomas, U.S. Supreme Court (2001-2002); Judge J. Harvie Wilkinson, U.S. Court of Appeals for the Fourth Circuit (2000-2001)

Professional Experience:

  • Administrator, Office of Information and Regulatory Affairs (Washington, D.C.)
  • Professor, Antonin Scalia Law School (Arlington, VA)
  • Associate Counsel, Office of the White House Counsel and Special Assistant to George W. Bush, The White House (Washington, D.C.)
  • Attorney, Clifford Chance LLP (London, UK)
  • Counsel, U.S. Senate Committee on the Judiciary (Washington, D.C.)

Career Notes:

  • Ms. Rao has served as Administrator of the Office of Information and Regulatory Affairs (“OIRA) since the beginning of President Trump’s administration. OIRA is located within the Office of Management and Budget (“OMB”) and oversees the implementation of government-wide policies and reviews draft regulations.
  • Prior to joining the Trump administration, Ms. Rao was a tenured professor at Antonin Scalia Law School, where she founded the law school’s Center for the Study of the Administrative State. Rao’s academic scholarship focused on the political and constitutional accountability of administrative agencies and the role of Congress

Professional Associations:

  • Ms. Rao is a Member of the Administrative Conference of the United States and serves on the Governing Council of the ABA Section of Administrative Law and Regulatory Practice.
  • She is listed as an expert for The Federalist Society and has been a speaker and panelist on the topics including Administrative Law, National Security Law, and Presidential Power.

Biographical Notes:

  • Ms. Rao is a first generation American whose parents were born in India. She is married and has two children.
Law & the Courts

This Day in Liberal Judicial Activism—November 13

Justice Stephen Breyer (Chip Somodevilla/Getty)

1980—Days after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the incoming Senate, President Carter nominates Stephen G. Breyer, then serving as chief counsel to Teddy Kennedy on the Senate Judiciary Committee, to a newly created seat on the First Circuit. Less than four weeks later, the Senate confirms Breyer’s nomination.

Law & the Courts

This Day in Liberal Judicial Activism—November 12

(Wikimedia Commons)

1908—In Nashville, Illinois, the human fetus to become known as Harry A. Blackmun emerges safe and sound from his mother’s womb. Some sixty-five years later, Justice Blackmun authors the Supreme Court opinion in Roe v. Wade. (See This Day for Jan. 22, 1973.) Somehow the same people who think it meaningful to criticize Justice Thomas for opposing affirmative-action programs from which he putatively benefited don’t criticize Blackmun for depriving millions of other unborn human beings the same opportunity that he was given.

1975—Justice William O. Douglas (see This Day for April 4, 1939) retires from the Court—only to be replaced by Justice John Paul Stevens.

Law & the Courts

This Day in Liberal Judicial Activism—November 11

Judge Stephen Reinhardt

2014What could possibly explain notorious liberal activist Stephen Reinhardt’s seemingly amazing propensity to be selected to sit on important Ninth Circuit cases with a strong ideological valence? Buried in a New York Times article is some very surprising news that provides a partial answer.

For “cases on a fast track, like the marriage case” that challenged Nevada’s and Idaho’s laws, the Ninth Circuit clerk’s office, “[u]ntil recently,” assigned cases “to the available panel with the most senior presiding judge.” As the article notes, “Judge Reinhardt, who was appointed by President Jimmy Carter, is one of the most senior active judges and so was disproportionately likely to be the presiding judge.”

This news is very surprising for at least three reasons. First, there is nothing in the Ninth Circuit’s rules or general orders that revealed the existence of this practice. Second, it is difficult to discern any justification for this departure from randomness. Third, this practice was not even commonly known among Ninth Circuit judges who had concerns about Reinhardt’s remarkable good fortune in assignments.

One other peculiarity: According to aletter from the party challenging the assignment of judges in the marriage case, the Ninth Circuit did not in fact use that “recently revealed ‘different procedure’” when it originally assigned a panel to the case. This deviation is consistent with concerns that the clerk’s office has had a great deal of unsupervised discretion in assigning cases—and that its abuse of that discretion may be more broadly responsible for Reinhardt’s astounding good luck in case assignments.

Law & the Courts

This Day in Liberal Judicial Activism—November 10


1961—Phony cases make silly law. Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and Lee Buxton, a Yale medical school professor who doubles as medical director of the League’s New Haven facility, contrive to get themselves arrested for violation of an 1879 Connecticut law against using, or being accessories to the use of, contraceptives—a law that had never been enforced. They succeed in being found guilty and fined $100 each, and thus begin to lay the stage for the Supreme Court’s 1965 ruling in Griswold v. Connecticut. (See This Day for June 7, 1965.)

1969—In the first federal court decision striking down an abortion law, federal district judge Gerhard Gesell dismisses the indictment of an abortionist, Milan Vuitch, on the ground that the District of Columbia’s abortion statute is unconstitutionally vague. In April 1971 (one day before it votes to hear Roe v. Wade and Doe v. Bolton), the Supreme Court will reverse Gesell’s ruling.

1992—Is orthodox Judaism the state religion of Georgia? A panel of the Eleventh Circuit rules (in Chabad-Lubavitch of Georgia v. Miller) that the display of a menorah in the rotunda of Georgia’s capitol building would violate the Establishment Clause. Eleven months later, the en banc Eleventh Circuit unanimously reverses the panel ruling and permits the menorah display.  

2016—Oregon federal district judge Ann L. Aiken submits a strong entry for the most pervasively lunatic ruling ever. In Juliana v. United States, she denies the Obama administration’s motion to dismiss a lawsuit in which “a group of young people,” ages eight to nineteen, claim that they have a substantive due process right to a stable climate.

Law & the Courts

This Day in Liberal Judicial Activism—November 9

(Wikimedia Commons)

1995—In A Woman’s Choice v. Newman, federal district judge David F. Hamilton issues a preliminary injunction preventing Indiana from implementing its recently enacted statute governing informed consent for abortion. Hamilton’s extraordinary obstruction of that statute—which was materially identical to the provisions held to be constitutionally permissible in the Supreme Court’s 1992 ruling in Planned Parenthood v. Casey—continues for seven years, until the Seventh Circuit reverses his rulings.

In March 2009, President Obama makes the former ACLU activist his first nominee to a federal appellate seat. In its headline on the nomination news, the New York Times touts Hamilton as a “moderate.”

2015—Longtime Wisconsin supreme court justice Shirley Abrahamson drops her appeal of a district-court ruling (by an Obama appointee, no less) that rejected her patently frivolous (and evidently perjured) lawsuit against the operation of a voter-adopted referendum that effectively displaced her as chief justice. So now everyone can agree that Abrahamson is not appealing.

Law & the Courts

Active Appellate Judges by Party of Appointing President

As of today, 168 of the 179 authorized “active” appellate judgeships are filled—85 by appointees of Republican presidents, 83 by appointees of Democratic presidents.

Oddly, the Federal Judicial Center’s biographical directory counts Fourth Circuit judge Roger Gregory as an active appointee of both President George W. Bush and President Clinton, so it generates a count of 85-84 even though it has a total of 168. I’m counting Gregory exclusively as a Bush appointee. Although Gregory was initially recess-appointed by Clinton, he holds his office now by virtue of Bush’s unrequited gesture of goodwill in appointing Gregory to a lifetime seat in 2001.

Here’s a breakdown of active appellate judgeships by appointing president:

Republicans: Trump 29, George W. Bush 38, George H.W. Bush 8, Reagan 9, and Ford 1 (Gerald Tjoflat of the Eleventh Circuit)

Democrats: Obama 52, Clinton 31

Law & the Courts

Transforming the Federal Courts of Appeals

It’s a long and difficult project for any president to transform the federal courts of appeals by his judicial appointments. President Trump is off to a great start, but there is a lot of work ahead.

There are 179 authorized “active” appellate judgeships, spread across the twelve geographical courts of appeals and the specialized Federal Circuit. Vacancies in these judgeships arise over a long period of time, for two main reasons. First, the Rule of 80 that governs judicial pensions usually encourages judges to serve at least 15 years in active status and until age 65.* Second, even after satisfying the Rule of 80, many judges will prefer to remain in active status (rather than take senior status or retire altogether from the bench).

In his first two years, President Trump has already appointed 29 appellate judges, and there are at least 7 more lined up for Senate action by year-end. Whether you look at the current total of 29 or the projected two-year total of 36, either is an all-time record for a president during his first two years. (Barack Obama had 16; George W. Bush, 17; Bill Clinton, 19.) But even the projected total of 36 is barely 20% of the 179 active seats.

Further, appointments will often preserve (and extend) rather than alter the ideological composition of an appellate court. Of Trump’s 29 appointments so far, 19 have been to seats previously held by an appointee of a Republican president (an admittedly crude and imperfect proxy for judicial philosophy), and 16 have been to seats on courts that already had a Republican-appointee majority when Trump took office. No court of appeals has yet swung from Democratic-appointee majority to Republican-appointee majority. (The Eleventh Circuit has moved from Democratic-appointee majority to evenly divided.)

One big obstacle to continued progress on federal appellate appointments is that there aren’t many remaining vacancies. In addition to the seven nominations lined up for Senate action by year-end, the White House has announced five other appellate nominations. Beyond that, there are only three existing appellate vacancies that don’t have nominees.

It’s possible that more vacancies will soon arise. By my count, there are some sixty judges who have met, or in a few instances will very soon meet, the Rule of 80 and thus can take senior status. But more than half of these are Democratic appointees, and many of them might well be disinclined to step down during the Trump presidency.**

That leaves some 27 or so pension-eligible Republican appointees as the most promising pool of imminent vacancies. To be clear: It is up to each judge to decide whether and when to take senior status, and I am certainly not encouraging anyone to do so. My limited point here is that the most likely vacancies to arise in the near future cannot be expected to alter the ideological composition of any court.

In short, transforming the federal courts of appeals is a project that will likely require much more than another two years of strong appointments.

* Under the Rule of 80, a judge becomes pension-eligible when the judge’s age plus years of service equal 80, so long as the judge is at least 65 and has served at least 10 years. (Age and years of service are counted in full years, excluding fractions.)

** I don’t mean to imply any objection to the fact that a sitting judge might prefer to be replaced by a president of the same party as the president who appointed the judge, especially if that preference is based on the presumed judicial philosophy of his successor.

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