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The Shift: The Coming of Trump's Judicial Picks Spurs Liberals to Press for Biden's

Donald Trump’s return to the presidency will have a profound effect on the U.S. judiciary as many older judges of conservative ideology and Republican appointment will likely opt for senior status or outright retirement soon after his inauguration. Either option will enable the once and future president to fill the judicial vacancy.

With the incoming Senate run by a Republican majority, Democratic senators will be powerless to thwart Trump’s picks as the legislative chamber’s filibuster rules do not apply to federal judicial nominees.

Twenty-five active GOP-appointed federal circuit court judges are eligible to take senior status based on their age and years of service, according to Federal Judicial Center data. Of the eligible GOP-judges, 16 were named to the bench by former President George W. Bush, four by George H.W. Bush and five by Ronald Reagan.

The prospect of Trump having the opportunity to fill so many judgeships in his first months in office has spurred liberal interest groups to press the current Democratic-led Senate to confirm judicial nominees in the last weeks of Biden’s presidency.

Four federal appeals court nominees are awaiting Senate floor votes: Julia Lipez, for the U.S. Court of Appeals for the First Circuit; Adeel Mangi, for the Third Circuit; Embry Kidd, for the Eleventh Circuit; and Karla Campbell for the Sixth Circuit. Fourth Circuit nominee Ryan Park, who had a confirmation hearing at the end of July, has been awaiting a Senate Judiciary Committee vote.

In addition, 23 district court nominees are awaiting either committee or floor votes, according to the Administrative Office of the U.S. Courts.

The Conversation

Federal-court watchers say they would not be surprised to see the GOP-appointed judges opting to step down shortly after Trump is sworn in on Jan. 20.

Harvard political science professor Maya Sen wrote on the practice of judges “strategically retiring,” that is leaving the bench when the party of the president who appointed them retakes the White House. Sen recently published a paper in which she found conservative Republican judges to be more likely than moderate Republicans to strategically retire.

Gbemende Johnson, a University of Georgia political science professor, agreed that strategic retirements occur but with the caveat that being on the bench and having a steady income is more appealing for many older judges than ensuring their successor is picked by a like-minded president.

“You do have that strategic behavior, evidence of it. But of course, that’s not going to necessarily be the case for every judge,” Johnson said. “Some of the judges may remain on the bench because they like the work [or] for financial considerations. All of these things are going to play into whether a judge steps down from the bench.”

Meanwhile, liberal groups realize that time is running short in their hope that the Senate will confirm Biden’s remaining judicial nominees before a Republican-led Senate is sworn in in January.

“Given the outcome of the election, the reality is that we now have a rapidly closing window to confirm well-qualified, fair-minded judges who will protect our rights and serve as one of the last guardrails in upholding our nation’s laws and Constitution,” said Maggie Jo Buchanan, managing director of Demand Justice.

“Even one judge can make a difference,” Buchanan added. “We don’t have a minute to lose. [Senate Majority] Leader [Chuck] Schumer and Senate Democrats must act now.”

Jake Faleschini, Alliance for Justice’s program director, said that “we have always been adamant that the Senate must confirm all of President Biden’s nominees and fill every possible vacancy, regardless of who wins the election.” Faleschini added that “with the prospect of more Trump judges on the horizon, this will hopefully create the urgency we’ve needed all along.”

The Significance

Donald Trump’s return to the presidency—and the authority to appoint federal judges—follows the U.S. Supreme Court’s June decision overturning what had been a 40-year-old doctrine of judicial deference to each federal agency’s interpretation of their regulatory authority when the governing statute was unclear.

Trump’s antipathy for regulations—and his expected wave of conservative judges—bodes ill for environmental, workplace and securities rules based on broad interpretations of statutory authority by the Environmental Protection Agency, the Federal Trade Commission, the National Labor Relations Board, the Securities and Exchange Commission and many other agencies.

Conservative jurisprudence entails narrow readings of statutes, which could lead to broad-based regulations being struck down under Trump-appointed judges. Regulated businesses have already mounted legal attacks on regulations—including EPA rules governing power plants and FTC regulations against noncompete provisions of employment contracts—as being beyond the agencies’ statutory authority.

Concerned liberal organizations have noted it was the Supreme Court’s 6-3 conservative majority that struck down Chevron deference in Loper Bright Enterprises v. Raimondo—and that, of the six justices, Trump appointed three of them: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

But the American Civil Liberties Union’s new national legal director, in a note of hope, broke from other liberal groups in saying that deference to federal agencies has not always advanced their progressive causes, especially not for the millions of immigrants caught up in the maw of the deportation system.

“Applying Chevron deference in immigration cases and deferring to the Board of Immigration Appeals is like deferring to the prosecution on the meaning of criminal law,” said Cecillia Wang. “The Loper Bright decision represents an opportunity to hit the reset button in places where courts have inappropriately deferred to agency interpretations of the laws that Congress enacted.”

The Information

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The Forecast

The next two months and the following two years will likely be mirror images in the U.S. Senate.

In its lame-duck session,the Democratic-led Senate will rush to confirm Biden’s pending judicial nominees followed by the Republican-run chamber making sure Trump’s nominees take their seats on the bench. The minority party in both instances will be largely powerless to stop party-line confirmations.

A spokesperson for Senate Judiciary Committee Chair Richard Durbin, D-Illinois, said confirming Biden’s nominees is a priority.

“Senate Democrats are in a strong position regarding judicial confirmations as we approach the lame-duck session given that we have a number of nominees on the floor ready for a vote and others still moving through committee.” the spokesperson said. “Chair Durbin aims to confirm every possible nominee before the end of this Congress.”

But Arnold & Porter Kaye Scholer partner John P. Elwood, who heads the firm’s appellate and Supreme Court practice, said it is historically rare for a lame-duck Senate to confirm judicial nominees.

Exceptions include the confirmation of Stephen Breyer to the U.S. Court of Appeals for the First Circuit after President Jimmy Carter lost his reelection fight in 1980 and the 14 Trump judicial nominees confirmed after he lost the 2020 election to Biden.

Nevertheless, Elwood said he expects the U.S. Senate to confirm a decent number of Biden’s judicial nominees while Democrats have control of the chamber.

“It is largely a political question on how much Republicans can slow-roll them and whether the votes are there,” Elwood said.

Steve Lash