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President Trump Will Soon Get to Pack the Federal Courts

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By Casey C. Sullivan, Esq. on January 26, 2017 2:57 PM

President Trump has pledged to announce his Supreme Court nomination next Thursday, setting up another major battle over the Supreme Court seat that has sat vacant for nearly a year now. But the Supreme Court is just one spot Trump has to fill -- one spot out of 114.

That's right, there are more than 100 current vacancies in the federal courts, and it now falls to Trump to fill them.

Trump Puts His Hands on the Judiciary

There are 890 judgeships in the federal court system, encompassing everything from the single judge of the District Court for the Northern Mariana Islands to the nine spots on the Supreme Court. During his tenure, President Obama appointed 329 Article III judges: 2 Supreme Court justices (Justices Kagan and Sotomayor), 55 circuit court judges, four judges to the U.S. Court of International Trade, and 268 district court judges. As a result, more than a third of all federal judgeships are now filled by Obama nominees.

In sum, Obama has had a pretty major impact on the federal courts. But that influence was made over an eight-year period, and stymied at times by a Senate which refused to act on nominees.

Trump's impact on the courts could be much more rapid. With a Republican-controlled Senate, it's possible that Trump could fill existing vacancies relatively quickly and easily. That could allow Trump to pick nearly 13 percent of the federal judiciary. That's the largest percentage of vacant seats an incoming president has faced since Bill Clinton was elected in 1992, 25 years ago.

An Impact, but Not Necessarily Major Shifts

There's no question that Trump will leave his mark on the courts, but he won't necessarily tilt the balance of the court system too much -- at least not initially.

Case Western University law professor Jonathan H. Adler recently ran down existing and expected vacancies in the circuit courts, and found that Trump nominees wouldn't alter the ideological makeup of the courts in many cases. The First, Fourth, Tenth, Federal, and D.C. Circuits, for example, have no current vacancies. The Eleventh and Sixth Circuits have one vacancy, with another coming soon for the Sixth, but the Eleventh is full of Democratic nominees, the Sixth of Republicans. A change of one or two judges won't shift the balance there too much.

Nor is the Ninth Circuit, with the largest amount of vacancies, expected to turn more conservative as a whole. Though the Ninth has four open seats, those are four seats out of 29. The Left Coast's left-leaning appellate courts aren't going to tilt right anytime soon.

But some courts will feel Trump's impact. The Second and Sixth Circuits could move from left-ish to center with two Trump nominees each. The Third could do the same with three.

Even where the balance doesn't shift overall, Trump's appointments could have an impact on three-judge panels and at the district court level, where a total of 88 seats are vacant. Plus, as Adler notes, there is some talk of expanding the judiciary, to relieve overburdened courts in some cases and to pack those courts, in the case of the D.C. Circuit, with Republican nominees.

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