On Court Nominations: Trump’s Off to a Good Start So Far

By Lynn Wardle | June 28, 2017 | 10:09am EDT
President Donald Trump (left) and Supreme Court Justice Neil Gorsuch and his wife (right) (Wikimedia Commons Photo)

Article III of the Constitution of the United States governs the judicial branch of the federal government.  Section 1 of Article III provides that: “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.  The Judges, both of the supreme and inferior Courts, shall hold their Office during good Behavior … [and their] Compensation. … shall not be diminished … .”  So federal judges have lifelong appointments, and their salaries may not be reduced.

In 1789, when the government of the United States of America began, the total number of federal judges authorized was 19 – six Supreme Court justices and 13 District Court judges.  In 2016, the total number of Article III judgeships authorized was 860 judges – 9 Supreme Court justices, 179 Courts of Appeals judges, 9 judges of the Court of International Trade, and 663 District Court judges.  

The judicial branch of the federal government exists to resolve “cases and controversies” that are brought into court.  Judges do not initiate cases on their own, but only hear and decide cases that private and public parties file.  The Supreme Court is the court of “last resort,” but most cases that are filed in federal courts do not go all the way to the Supreme Court because of the costs of litigation and appeal, and other practical and legal impediments.  So often the lower courts have the “final” word in federal cases.

All fifty States have their own state court systems also – usually consisting of trial courts, intermediate appellate courts, and a state supreme court.  Most state courts have very broad, general jurisdiction to hear cases involving state laws (contracts, torts, domestic relations, criminal cases, etc.). 

Federal courts, in contrast, can hear only limited types of cases that are authorized by Article III of the Constitution and by congressional statutes.  Most federal cases involve the United States as a party, and/or alleged violations of the U.S. Constitution or of federal laws, or civil suits between citizens of different states involving claims of $75,000 or more, or concern specific federal regulations (such as bankruptcy, copyright, patent and maritime cases). 

Many cases could be filed either in a federal court or in a state court.  Most cases are filed in state courts because they are more conveniently located, the issues concern state laws, the state court judges have expertise in those issues, and often the can be tried more quickly and with lower costs than cases filed in federal court.  However, a few kinds of cases involving issues governed by specific federal laws (such as bankruptcy, intellectual property, etc.) must be brought in federal court.

The President of the United States must take the initiative to fill judicial vacancies.  The President nominates someone to fill the vacancy, and the United States Senate may either confirm or reject the nomination.  Rarely (most recently in the case of Merrick Garland’s nomination to the Supreme Court) a nomination may expire before the Senate acts on the nomination. 

Federal judges are among the most potentially influential and potentially important federal officials.  In part, that is due to their job security and longevity.  But it is also due to the fact that their decisions are so influential and so final.  Decisions of the Supreme Court are final.  There is no further appeal.  Decisions of the lower courts are final if they are not appealed, and even if they are appealed, they are just one or two steps (appeals to the federal courts of appeal or the Supreme Court) from being absolutely final. 

So the Presidential power to nominate federal judges is very important.  The judges they nominate (if confirmed, which is most of the time) may hold office and exercise judicial power for decades after the President who nominated them has left office. 

When Donald Trump became President, there were more than 120 judicial vacancies in the federal courts.  That means that nearly fifteen percent (15%) of the federal judgeships were empty. 

So far, President Trump’s record in nominating persons to fill federal judgeships is very positive.  His nomination of Neil Gorsuch to the Supreme Court of the United States has widely and properly been praised.  Gorsuch is extremely well-qualified, has excellent judicial experience, and his performance so far as a Justice of the Supreme Court has been excellent.

But there still remain scores of vacant federal judicial positions that need to be filled.  Traditionally, Senators from the state wherein the federal court vacancy exists play an influential role in suggesting or vetting potential and actual nominees.  So the judicial appointment process is political – as the Founders of the Constitution understood.  That keeps the independent Third Branch accountable. However, it also gives the opportunity for political obstruction and opposition party manipulation.

Shortly after Neil Gorsuch was confirmed President Trump nominated 10 other persons to fill vacancies on the lower federal courts. In June he nominated eleven other persons to fill judicial vacancies.  Thus, President Trump is proceeding to nominate judges at a deliberate, prudent pace, giving time for proper screening and assessment.  Still, the nomination process of federal judges must not lag or falter.  Some Senate Democrats will try to delay and derail the confirmation process.  Such blockade attempts must be overcome. And the President must try to make nominations to fill all of the judicial vacancies.

There are many appointments and nominations a new President must make as he begins his administration.  Nominating federal judges is among the most important.  Presidents Obama, G.W. Bush, and Clinton each made over 300 federal judicial appointments.  So President Trump must continue without delay to nominate qualified candidates to fill the nearly 130 federal judicial vacancies.

Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University.  He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.


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