The Judiciary in Jeopardy

September 7, 2017

By Lena Zwarensteyn, ACS Director of Strategic Engagement

Our federal judiciary is in jeopardy. Courts are often the last defense for our Constitution. Federal courts make decisions about how we are treated in the workplace, how the law regards women, racial minorities, and those with disabilities, among others, consumer protections, the safety of our environment, our right to vote, and our immigration system – just to name a few issues. 

And yet, we have a President that has attacked individual judges and courts.

Indeed, he campaigned with a list of potential nominees to the Supreme Court that he repeatedly emphasized would be the most conservative jurists he could find, and he was certain they passed a series of litmus tests, including on reproductive rights and gun safety laws.

Already, Justice Gorsuch, one of the names on the short list, has been confirmed to the U.S. Supreme Court (a seat to which Chief Judge Merrick Garland was nominated in March 2016) and a number of those remaining on the shortlist have been named to other seats on the federal courts, including U.S. Circuit Court of Appeals seats in Michigan, Minnesota, Kentucky, and Colorado.

Currently, there are 155 current and future judicial vacancies - nearly 18 percent of Article III – lifetime - judgeships. The possibility for this Administration to drastically change the composition of the courts is real.

How did we get here?

As many know, during President Obama’s 8 year tenure, the Senate confirmed 329 Article III judges and created a more representative federal judiciary than ever before by including more judges of diverse professional experience, as well as increasing the representation of women and people of color on the bench.

But because of the very intentional obstruction during the last two years of Obama’s presidency, which extends from the stolen seat on the Supreme Court to the more than 100 lower court vacancies that the Senate majority ensured would not be filled by President Obama, this Administration could, in their words, transform the courts. And, by many accounts, this is precisely what this Administration is doing quite aggressively – and successfully.

For a quick bit of context, the Senate has confirmed five lower court judges appointed by President Trump – the latest yesterday. At this point in President Obama’s term in office, the number was zero. This Administration has been aggressive in naming nominees, often without consultation with Senators, bucking longstanding practice. Right now, 28 nominees are pending in the Senate.

Still, there have been a few voices wrongfully claiming the Senate minority is holding up the process. Given how important courts are to protecting equality and administering justice, it is important that those who sit on the bench with lifetime appointments are thoroughly vetted and not simply rushed through a broken process.