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Making Circuits Courts Appealing Again

Ilya Shapiro and Aaron Barnes

Even beyond passing tax reform, slashing federal regulations,
and pruning the federal bureaucracy, Donald Trump’s most impressive
and lasting achievement so far is his record-setting pace of
judicial appointments to the U.S. courts of appeals. While the
Supreme Court gets attention for its blockbuster national cases,
the 13 federal circuit courts represent the end of the line for all
but 70 or so of the more than 50,000 cases they decide annually.
Judges sit on those appellate benches for life, affecting our law
long after the White House has changed hands.

After eclipsing the previous first-year records set by
Presidents Kennedy and Nixon with 12 appellate judges confirmed in
2017, what are the prospects for continuing this momentum and
increasing Trump’s judicial legacy?

Ultimately, the answer depends on two factors: (1) the number of
open seats to fill and (2) the power to get preferred nominees
confirmed. With regard to the latter, to paraphrase Yogi Berra,
making predictions about control of the Senate is hard,
particularly beyond this year’s elections. But engaging in a bit of
informed speculation as to the number of seats that will be
available for filling is less of a parlor game. The key
consideration in forecasting such vacancies — beyond the 17
that currently exist, for which six nominees are pending — is
the potential for judges to take advantage of what is known as
senior status. This status is governed by the so-called Rule of 80:
A federal judge who is at least 65 years old has the option of
going into semi-retirement once the judge’s combined age and years
on the bench add up to 80. So someone who was appointed before the
age of 50 (as most of Trump’s nominees have been) can go senior
immediately at 65.

The decision to take senior status has significant consequences.
Under it, a judge has the option of presiding over a reduced
caseload while maintaining his or her full salary. (In effect,
whatever work they do is voluntary at that point because they get
their full salary in retirement regardless, so we should be
grateful to them for picking up that slack.) For those who consider
interpreting the law and deciding cases to be a labor of love,
doing less work for the same pay can prove to be quite enticing.
Most relevant to a president wishing to leave a lasting mark on the
courts is that these senior judges don’t count against the 179
total appellate judgeships authorized by Congress. As soon as a
judge takes senior status, the president can nominate a new judge
to fill the newly vacant seat.

For President Trump, this is the most likely way he could begin
to reverse the historic shift in the jurisprudential balance of the
courts that occurred during the Obama years. When President Obama
first took office, only one federal appeals court contained a
majority of judges appointed by Democrats — the West Coast’s
Ninth Circuit, which has a built-in Democratic advantage not
because the Pacific states lean left but due to judgeships added
during the Carter administration. When Obama departed the
presidency, the number with Democrat-appointed majorities had
swelled to nine, with Republican-appointed majorities remaining in
only the Fifth, Sixth, Seventh, and Eighth Circuits (essentially
the middle of the country). While those four courts are virtually
guaranteed to maintain their Republican-appointed majorities
through the remainder of Trump’s presidency, the more interesting
question is how much the president will be able to reverse the tide
in the other nine circuits.

In the short term, the mid-Atlantic Third Circuit looks to be
the most likely to flip back. When President Trump took office, the
court had seven judges appointed by Democrats, five by Republicans,
and two vacancies. One seat has already been filled by Judge
Stephanos Bibas, and an additional vacancy was created when Judge
D. Michael Fisher (a George W. Bush appointee) took senior status
shortly after the inauguration. Assuming Trump can fill the two
current vacancies, there would be a 7-7 split on the court. Three
additional judges are already eligible for senior status, two of
them Clinton appointees-but the oldest of these just turned 70, so
this project may have to wait until a potential second Trump term
if the senior-eligible judges try to wait out this president.

Republican takeovers of the remaining circuits will require the
departure of an even greater proportion of judges originally
nominated by Democrats. Such nonpartisan decision-making by sitting
judges is not altogether unheard of though; Clinton-appointed
Judges Ann Claire Williams and Diana Murphy of the Seventh and
Eighth Circuits, respectively, elected to take senior status after
Donald Trump’s election, while Ninth Circuit Judge Richard Tallman
announced last summer that he would be following suit. But even in
the event of massive vacancies left by Democrat-appointed judges,
Trump is exceedingly unlikely to restore the 12-1 advantage held by
Republicans when President Bush left office, with the Federal
Circuit (a specialized court that handles patents and other
technical areas) and Eleventh Circuit particularly unlikely to
flip.

Still, to the extent that waiting out the president is less of a
factor in at least some judges’ retirement decisions, two
particularly interesting prizes might be put in play (or at least
become much closer): the court that is second only to the Supreme
Court in importance and prestige, and the one that has been most
associated with progressive jurisprudence. The former is the U.S.
Court of Appeals for the D.C. Circuit (not to be confused with the
D.C. Court of Appeals, the highest court for municipal issues in
the capital district). The D.C. Circuit currently features seven
Democratic appointees — three of them confirmed only because
of then-Senate majority leader Harry Reid’s elimination of
filibusters in 2013 — as compared to just four members
appointed by a Republican. Three of those Democratic appointees are
eligible for senior status. Intriguingly, the oldest of them,
78-year-old Judge Judith Rogers, was originally appointed to the
district court by President Reagan before being appointed to the
circuit court by President Clinton. Should she and either Judge
David Tatel (somewhat plausible) or Chief Judge Merrick Garland
(not a chance; see 2016) choose to move on to greener pastures, the
D.C. Circuit would become much less predictable.

As consequential as that would be, a far more significant shift
could be brewing in the Ninth Circuit. Not only is this the most
liberal circuit court in the country; its 29 judgeships make it by
far the largest, and its makeup currently stands at an astounding
18 Democrat appointees, six Republican appointees, and five
vacancies. The most important factor, though, is that the circuit
skews old: Ten of those Democratic appointees are currently
eligible for senior status. That includes the last full-time Carter
appointee, Judge Stephen Reinhardt, who turns 87 in March. Also
included is the previously mentioned Judge Tallman, who will take
senior status that same month. If Reinhardt retires and all seven
resulting vacancies (including Tallman’s) are filled — a big
“if” given the “blue slip” war over seats in states with two
Democratic senators — the Ninth Circuit would suddenly become
a very different animal. Unthinkable? Maybe, but stranger things
now regularly happen in our political world.

Ironically, President Trump’s biggest short-term impact may be
on courts that already hold a majority of Republican-nominated
judges. This is particularly true of the Sixth, Seventh, and Eighth
Circuits. The Sixth Circuit already boasts three Trump nominees in
its 16-judge complement, including two highly reputed Supreme Court
short-listers, Judges Amul Thapar and Joan Larsen. Six more judges
are senior-eligible, including three Republican appointees, and two
more will become eligible in the next year and a half.

The Seventh Circuit has eleven full-time seats but only eight
active judges, one of them the recently confirmed Judge Amy Coney
Barrett. With an additional five judges currently eligible to take
senior status (four of whom were appointed by a Republican
president), it’s conceivable that President Trump could appoint as
many as eight judges here in his first term alone, constituting
over three-quarters of the whole court! Not far behind for
potential Trumpian impact is the eleven-judge Eighth Circuit, which
has already seen three nominations (two confirmed). An additional
three judges on this court are currently eligible for senior
status, all of whom were appointed by Republican presidents.

Finally, the wild card as far as President Trump’s influence
goes could end up being the Fourth Circuit, historically one of the
most conservative courts in the land, but which has changed
radically with President Obama’s six appointments and now stands at
the forefront of the judicial “resistance.” It’s a court with 15
seats, ten of them filled by Democratic appointees (counting Chief
Judge Roger Gregory, who was renominated by George W. Bush as a
good-faith gesture after Gregory’s Clinton nomination expired
without Senate action). Two judges have already announced that
they’re taking senior status this year, four more are eligible, and
two more become eligible in 2018 — making potentially a total
of eight vacancies, four of them Democratic appointees (all
Clinton). So there could be anywhere from two to eight vacancies
during President Trump’s first term — a feast-or-famine
scenario!

As with almost any prognostication of this sort, what plays out
in reality may not follow the probabilities discussed above, which
understandably don’t take into account deaths, sex scandals, and
the like. And of course if Supreme Court justice Anthony Kennedy
retires this spring — or whenever he does — it will
make the battle over the late Justice Antonin Scalia’s seat look
like a minor procedural skirmish.

Perhaps our safest prediction for this new year is also the
boldest: As strange and entertaining as 2017 was for court-watchers
of every political stripe and interpretive theory, 2018 promises to
be the rare example of a sequel that surpasses the original.

Ilya Shapiro
is a senior fellow in constitutional studies at the Cato Institute,
where J. Aaron Barnes is a legal associate.