WASHINGTON, September 2, 2016 – The nomination of a Supreme Court jurist overwhelms the headlines. A quick search of Google News headlines show that President Obama’s nomination of Merrick Garland to fill the vacancy created by Judge Antonin Scalia’s death created 120,000 results.
What most American’s do not realize is that it is the lower courts, in particular the appellate court, and the judges that a president appoints, that strongly determine a president’s lasting legacy.
Presently there are 92 senior status federal appellate judges that were elected by President Reagan (32%), President Carter (20%), President George H.W. Bush (17%) and President Clinton (17%).
The remaining 14% were appointed by Presidents Johnson, Nixon, Ford, George W. Bush, and Obama. (Cite: American Civil Liberties Journal – ACLJ)
Where the real impact on America’s laws comes from are the 264 active and senior federal appellate judges appointed by President Carter(7%) President Reagan(17%), President George H.W. Bush (9%); President Clinton (22%), President George W. Bush (22%) and President Obama, who will leave office in 2017, appointing 21% of the presently sitting appellate court judges. If he is able to fill vacancies on the courts before he leaves office, President Obama’s percentage could jump to 24%. (ACLJ.org)
The previously identified judicial appointments impact America laws and life for decades after the appointing president leaves the White House. A judicial appointment is powerful and the appointment of Judges to the Court of Appeals and the Supreme Court of the United States two of the most important actions a sitting president can take to ensure that their policies are protected after their presidency ends.
Most Americans are aware of the gravity of the decisions by the Supreme Court. For example in 2016 by a 5-3 vote, with an opinion authored by Justice Kennedy, the Court ruled that Pennsylvania violated Terry Williams’ right to due process when a state supreme court justice who, in his former position as Philadelphia District Attorney, had personally involvement in Williams’ capital prosecution later participated as a judge in an appeal in the same case. (WILLIAMS v. PENNSYLVANIA, No. 15-5040).
More widely known, or publicized, cases that the Supreme Court has recently addressed include the Affordable Care Act, abortion, laws regarding DUI tests, the power of teachers’ unions, and freedom of speech.
While judges are tasked with interpreting the laws of the land, their rulings are based on their individual interpretations of those laws and it is a fools errand to say that a conservative judge would rule favorably on the issue of abortion or that a liberal judge would agree to repeal the right to marriage laws.
This is why the appointment of a judge to the Supreme Court is so politically charged and why appointments to the appellate court should be.
The U.S. Court of Appeals, informally called the federal circuit court are the 13 appellate courts that sit between the Federal District Court and the Supreme Court.
The circuit court hears cases that have been appealed from the federal courts and federal agencies for further consideration.
Each circuit court has between six and 28 judges that have been appointed by the president. In total there are between 60 and 66 judges appointed for life by each president (Clinton: 66; Bush: 62; Obama: 55 plus 7 awaiting confirmation).
The Federal Circuit court is the only court that has the nationwide jurisdiction to hear appeals from any other circuit court. These specialized cases often revolve around federal laws such as patent laws, and cases decided by the U.S. Court of International Trade and the U.S. Court of Federal Claims.
Sharon Prost, appointed by Bush, is the Chief Judge of the Court of Appeals for the Federal Circuit of which there are 11 Circuit Judges and six senior circuit judges. Eight of those judges were appointed by Reagan (2) and George H.W. Bush (5, including Prost). Three were appointed by Clinton and Obama (7) meaning that the federal judges are equally balanced politically.
When a case is sent from the Federal Courts to the Circuit Court a panel of (normally) three judges review cases. That panel does not “hear” a case in a courtroom, but instead reviews the records from the original trial looking for misapplications of law or inconsistencies in the application of law. The judges will accept written arguments from the federal court lawyers that present their arguments as to whether the federal court decision was right or wrong.
Each court decision creates a precedent for the application of future laws and that is to be weighed by future courts. It is what lawyers refer to when they reference a previous case and the decision of the court to prove that their position is the one that is most aligned with our laws and Constitution.
As an example, our Eighth Amendment prohibits “cruel and unusual punishment” and while a lawyer may argue that execution falls under “cruel and unusual punishment”, in many states execution for a capital crime is legal. A lawyer may argue that a previous “distinguishing” case should determine the decision in the case being appealed and that by being sentenced to death for a crime, that his client’s constitutional rights have been violated.
Appellate courts across the country hear tens of thousands of cases every year. And while the Supreme Court decisions are considered to establish a binding precedent by which all other cases will follow, they normally hear less than 100 cases per year.
This means that the decisions made by the appellate judges, who are appointed for life by the sitting president, are extremely important to the application of the law by the lower courts.
During President Obama’s time in office he has made 329 judgeships confirmed by the U.S. Senate, including two justices to the Supreme Court, 55 judges to the US Court of Appeals, 268 judges to the US District Courts and four judges to US Court of International Trade.
There are currently 54 judicial presidential nominations awaiting Senate action including one vacancy on the Supreme Court as a result of Justice Antonin Scalia’s death, 9 vacancies on the US Courts of Appeal, seventy one vacancies on district courts, 2 vacancies on the Court of International Trade and 16 federal judicial vacancies.
While the vast majority of lower court judicial nominations are approved, the Senate for a variety of reasons can reject judges who are nominated to the courts.
Nominees put forward by President Obama have been rejected by the Senate for a variety of reasons, not all of them partisan. An earlier failed nomination is that of Goodwin Liu United States Court of Appeals for the Ninth Circuit, California.
Withdrawing his nomination to the Circuit Court of Appeals, California Governor Jerry Brown nominated Liu to a seat on the Supreme Court of California and President Obama nominated U.S. District Judge Jacqueline Nguyen to the Ninth Circuit seat to which Liu had been nominated and the Senate confirmed her on May 7, 2012.