ANALYSIS/OPINION:
What’s better than another Antonin Scalia on the U.S. Supreme Court? How about another Antonin Scalia on the Supreme Court and another 10 Antonin Scalias on lower federal courts, ready to rule and move up when the time is right?
Conservatives are still celebrating the victory of Neil Gorsuch’s confirmation to the Supreme Court, but the reasons to celebrate are just beginning. Based on the nominations to lower federal courts he made early this week, filling the Supreme Court vacancy was only a small part of President Trump’s strategy to leave an indelible mark on the federal court system. And that’s great news for conservatives.
On Monday, Mr. Trump announced ten nominations to the federal court system - and each one demonstrates the president’s commitment to his campaign pledge to nominate true conservatives in the mold of Justice Antonin Scalia.
Supreme Court nominations capture Americans’ attention and receive an overwhelming amount of media coverage. But the true power player in the federal judiciary is not the Supreme Court - it is the lower courts. Consider the sheer volume of cases. On average, the Supreme Court hears oral arguments in 70 cases per term; a federal judge, by contrast, takes, on average, between 500 and 600 cases each year.
A president may only nominate two or three people to the Supreme Court, but on average, will make hundreds of nominations to the federal bench’s lower courts. Presidents Barack Obama, George W. Bush, and Bill Clinton each made over 300 appointments to the lower court. President Trump, even at this early stage in his presidency, already has 130 vacancies on lower federal courts to fill.
The U.S. Constitution stipulates that federal judges must be nominated by the president and confirmed by the Senate. Federal judges hold their position during good behavior, which generally translates as lifetime tenure. With lifetime appointments, federal judges are an extremely important part of every president’s legacy.
Because the Supreme Court hears only a small fraction (one percent, most years) of the cases that are appealed to the High Court, the lower federal courts’ rulings carry enormous weight. On issues of paramount importance to conservatives - the rule of law, individual liberty, religious liberty, Second Amendment protections, policies that promote free speech, and the ongoing efforts to restrain the federal government, among others - the lower federal courts are often the final word. As we have seen in recent years, activist judges on the lower courts have the ability to reshape policies, effectively rewrite laws, and trample conservative principles - or uphold them.
In rolling out this initial list of ten nominees to the lower courts, President Trump has signaled that he understands the importance of the lower courts in protecting and defending the Constitution and the rule of law.
And a closer look at the names on the list indicates that President Trump has also decided that the late Justice Antonin Scalia’s judicial philosophy should not be confined merely to the Supreme Court, but should, instead, be deeply held at the lower court level, as well. It is impossible to overstate what a huge victory this is for conservatives.
Just who are the Scalia-like nominees on President Trump’s list? There’s Justice Joan Larsen of the Michigan Supreme Court, about whom the Detroit News writes: “Larsen is the definition of a rule of law judge. While unapologetically conservative, she has earned respect across the philosophical spectrum for her scholarship and her deference to the intent of the Constitution.” Then there are Justice David Stras of the Minnesota Supreme Court; Amy Coney Barrett, a Notre Dame law professor who clerked for Justice Scalia; John Bush, an attorney in Louisville; Kevin C. Newsom, a former Alabama Solicitor General; Judge David C. Nye, nominated to the U.S. District Court for Idaho; Scott L. Palk, former federal prosecutor; Damien Schiff, nominated to federal claims court; Dabney L. Friedrich; and Judge Terry Moorer.
Writing in Bloomberg, liberal Harvard law professor Noah Feldman notes that Trump picked “serious, principled conservatives … the kind of people who can leave an imprint on the courts for decades.” Feldman also notes that the vast majority of Trump’s picks are in their mid-40’s to early 50’s. When nominating for lifetime appointments, age is more than just a number.
Trump seems to have been guided by two overarching principles: Nominate relatively young legal experts who can serve for many decades on the federal bench; and, as long as these judges will be there for decades to come, they should be the type of judges who faithfully adhere to the Constitution - just as Scalia did. On both counts, Trump has put forth a tremendous first batch of nominees.
With characteristic wit, Justice Scalia wrote in a 2002 decision: “Campaign promises are, by long democratic tradition, the least binding form of human commitment.” True. That is often the case. And that is why it is all the more remarkable that President Trump has not only honored his campaign pledge to nominate a justice in Scalia’s mold for Scalia’s vacant seat, but he has actually expanded upon his campaign promise and is making sure even his nominations to the lower courts meet the “Scalia test.”
Conservatives can be thankful that President Trump’s extended promise-keeping on judges has been a notable exception to Scalia’s observation.
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