Tuesday night, President Trump announced Neil Gorsuch as his nominee to fill Antonin Scalia’s seat on the Supreme Court. But often overlooked, Trump also has 103 circuit and district court judge vacancies to fill, and more will arise over the course of his administration. Whether those spots are filled — and by whom — will significantly shape the country’s legal landscape.

[ The path ahead for Neil Gorsuch, Trump’s Supreme Court nominee]

As it stands, most federal judges were nominated by Democrats, primarily because of former president Barack Obama’s appointments. Before Obama took office, the majority of judges were appointed by Republicans, and it will swing back that way during Trump’s term.  

There are 17 vacancies out of 179 judgeships in

circuit courts

17 vacancies

90 appointed

by Democrats

72 appointed

by Republicans

district courts.

and 88 vacancies out of 677 judgeships in

88 vacancies

347 appointed

by Democrats

242 appointed

by Republicans

There are 17 vacancies out of 179

judgeships in

circuit courts

90 appointed by Democrats

72 appointed by Republicans

and 88 vacancies out of 677

judgeships in

district courts.

347 appointed by Democrats

242 appointed by Republicans

In recent years, the Supreme Court has reduced its caseload to about 80 cases per year, only 1 percent of those submitted for review. As a result, innumerable cases with significant legal questions receive their final ruling from a circuit court, giving those judges — many of whom Trump has the power to nominate — the ability to shape legal precedent in line with their ideologies.

“You see these states falling over themselves to put abortion bans at 20 weeks, cases on gun control, cases on LGBT rights, and these judges are going to have a say in those issues,” said Todd Peppers, a law professor at Washington and Lee University. “The stakes here are enormous.”

Just this term, circuit courts rendered the final ruling on cases involving Texas’s strict voter ID law, whether Michigan can remove its “straight-ticket voting” option from ballots and whether to overturn death sentences based on questionable evidence.

CIRCUIT COURT VACANCIES

Represents one open circuit court judgeship

7th Circuit

2nd Circuit

8th Circuit

9th Circuit

1st Circuit

ND

WA

ME

VT

6th Circuit

MN

MT

SD

NH

OR

MA

NY

ID

IA

NE

RI

WI

WY

MI

CT

NV

NJ

MO

OH

UT

PA

3rd Circuit

CA

IN

IL

CO

KS

AR

KY

DE

TN

AZ

OK

MD

NM

WV

VA

D.C. and

federal circuits

AK

NC

MS

SC

HI

TX

4th Circuit

LA

AL

GA

10th Circuit

FL

5th Circuit

11th Circuit

CIRCUIT COURT VACANCIES

Represents one open circuit court

judgeship

2nd Circuit

3rd Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

11th Circuit

CIRCUIT COURT VACANCIES

Represents one open circuit court judgeship

7th Circuit

2nd Circuit

8th Circuit

1st Circuit

9th Circuit

ND

WA

ME

VT

6th Circuit

MN

MT

NH

SD

OR

MA

NY

ID

IA

RI

NE

WI

WY

MI

CT

NV

NJ

MO

OH

UT

PA

3rd Circuit

CA

IN

IL

CO

KS

AR

KY

DE

TN

AZ

MD

OK

NM

WV

VA

D.C. and

federal circuits

AK

NC

10th Circuit

MS

SC

HI

4th Circuit

TX

LA

AL

GA

FL

5th Circuit

11th Circuit

In the district courts, where most cases are first heard, “the vast majority deal with largely settled issues of law, so there isn’t really a lot of room for [a judge’s] ideology to come into play,” said Virginia Hettinger, a political science professor at the University of Connecticut. Higher up, in the circuit courts and Supreme Court, “there’s more room for ideology or policy-based decision-making.”

Although it’s less important than for circuit court judges, according to Peppers, “partisanship matters a tremendous amount” for district court judges, who occasionally hear legally controversial cases.

A 2010 study by Christopher Zorn of Pennsylvania State University and Jennifer Bowie of the University of Richmond supports these perspectives. It found that for a given case that makes it to the Supreme Court, both the district and circuit court decisions reflected the judges’ ideological leanings, but that connection was stronger within the circuit court.

They attribute this to institutional constraints, among other factors. The higher courts have to follow fewer legal precedents. And because decisions are less likely to be — or can’t be — appealed, their decisions are less likely to be reversed for being ideologically out-of-step, which judges try to avoid.

All of this indicates that the political leanings of Trump’s nominees, especially at the circuit court level, could significantly affect future case law. Because of political circumstances, Trump is well positioned to have a major, lasting effect on the courts, if he so chooses.

To begin with, he is facing a high, but not extraordinary, number of vacancies to fill as he enters office.

VACANCIES WHEN EACH PRESIDENT TOOK

OFFICE

Trump

17

circuit court

vacancies

88

district court

vacancies

Obama

13

40

Bush

26

54

Clinton

17

90

VACANCIES WHEN EACH PRESIDENT TOOK OFFICE

Trump

17

circuit court vacancies

88

district court vacancies

Obama

13

40

Bush

26

54

Clinton

17

90

Hettinger from the University of Connecticut and Russell Wheeler of the Brookings Institution largely attribute this to Senate obstruction. As Wheeler found, in Obama’s final two years in office, significantly fewer of his nominees were confirmed than other presidents’ over the same time period, all facing an opposing Senate majority.

PERCENTAGE OF NOMINEES CONFIRMED

DURING FINAL TWO YEARS IN OFFICE

Obama

28% confirmed

W. Bush

67%

Clinton

65%

H. W. Bush

69%

Reagan

80%

PERCENTAGE OF NOMINEES CONFIRMED DURING FINAL TWO YEARS IN OFFICE

Obama

28% confirmed

W. Bush

67%

Clinton

65%

H. W. Bush

69%

Reagan

80%

Whether, and how quickly, Trump will fill these vacancies is an open question. The process is long — selecting and vetting a candidate, passing them on to the Senate to be vetted again, put through hearings and put to a vote. So the speed with which the spots are filled highly “depends on the administration’s priorities,” Hettinger said.

If this becomes a priority, it will be significantly easier for Trump to get his nominees confirmed than it was for previous presidents. Republicans have a majority in the Senate, and these judicial nominees will not be subject to a filibuster thanks to the Democrats’ rule changes back in 2013.

So not only could the effect be substantial, but it could be swift.

“In one sense, it’s one of the most important powers a president has, because judges can sit on the court for 30 or 40 years and reach decisions which mirror the president’s policy preferences,” Peppers said. “The impact extends beyond the president’s lifetime.”

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