By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends much of her time in Asia and is currently working on a book about textile artisans.
Today Trump trumpeted his (ahem) successes– real and otherwise– in his first 500 days as President (see this White House press release, President Donald J. Trump’s 500 Days of American Greatness) One achievement: confirming “the most circuit court judges of any President in their first year, and [securing] Justice Neil Gorsuch’s confirmation to the United States Supreme Court.”
This Administration accomplishment cannot be denied, as I have acknowledged previously in Trump Sets Records for Seating Federal Judges:
One year in, the Trump administration continues to set records for the discipline and efficiency with which it is seating federal judges– who have lifetime tenure, and will continue to serve long after the Donald is a bad memory.
As David Lat writes in Above the Law, the administration well understands that the success of advancing its agenda, in the longer term, depends in significant part on the composition of the federal judiciary. Trump cannot replace sitting judges, but he can make sure, going forward, that those who share a similar ideological approach, are ruling on his initiatives and those of his successors:
Many of President Trump’s initiatives might get stuck in Congress, struck down by courts, or undone by his successor — but his appointees to the federal bench, appointed for life, will be around for a long, long time (especially given the administration’s focus on youth when selecting nominees).
Brookings published this report today, Senate obstructionism handed a raft of judicial vacancies to Trump—what has he done with them?, explaining one necessary condition for Trump’s success in seating federal judges:
The reasons for the vacancies—old news to most—was the flimsy confirmation record in the 2015-16 Senate (the 114th), with its new Republican majority. Just as it refused to consider Merrick Garland’s Supreme Court nomination, it shut down the lower court confirmation process.
The Brookings report concludes that conditions that prevailed in the Senate in 2015 and 2016:
contributed to the contentiousness and polarization of the once semi-ministerial task of confirming judge. There is no reason to expect the process to get any better. We are reaching the point that confirmations stop unless the same party controls the White House and Senate.
Currently, Republicans are not resting easy and are working to confirm further judicial nominations– with Senator Chuck Grassley going so far as proposing to surrender the August congressional recess to further this goal, as recently reported by The GOP senator: Work during August recess to help confirm judges:
“Lets work Friday/Saturday/August recess to get more done in the Senate [and] help the judicial branch do its job…”
Bizarre Trump Side Effect?
I noticed that the Trump transition might be having a somewhat bizarre side effect– on the relative rankings of US law schools. Above the Law on Friday published its latest law school rankings, which have seen a shake-up, partly due to which law school’s graduates are securing coveted post-law school clerkships:
This year, we have a new number one. The University of Chicago Law School was number two last year, but takes the top spot this year. The school’s large law firm placement was up 11 percent, and its federal clerkship placement was up four percent. Their graduates are landing great opportunities, and that is reflected in our rankings.
In fact, our entire top three is different this year. Chicago is at number one, the University of Virginia School of Law is number two, and Duke Law is number three.
All of those schools had upticks in their federal clerkship rates. UVA was up a full eight percent, year over year. Meanwhile, Harvard Law School (ranked number 4) and Yale Law School (ranked number 7) saw their federal clerkship rates go downfour percent each.
It’s hard for me to look at these numbers and not see the invisible hand of #MAGA supremacy at play. As Trump and McConnell take over the federal judiciary, it’s interesting to me that more people from Chicago and UVA and Duke are getting clerkships, while fewer people from Harvard and Yale are. It could be a one-year blip… it could be a 25-year blip if the Federalist Society and Heritage Foundation continue to have their way.
Perhaps in the longer term, this change in relative law school rankings will some day flow through to a more diverse make-up of the United States Supreme Court. At present, as I’ve discussed before (see here) all sitting Supreme Court Justices studied at either Harvard or Yale Law School (Ruth Bader Ginsburg studied at Harvard for her first two law school years and then transferred to Columbia when her husband took a New York job). This is a shift from the not so distant past, when William Rehnquist and Sandra Day O’Connor were Stanford graduates– not that adding Stanford graduates to the mix does very much other than provide some geographic diversity.
I think it would be a good idea to widen the scope of judicial appointments much more beyond merely which law school prospective justices attended, especially at the highest level. In fact, I’ve previously endorsed Judge Richard Posner’s idea that Supreme Court Justices need not be lawyers at all (see here, quoting Posner):
Nor should appointment to federal courts including the Supreme Court be limited to lawyers. A brilliant businessman, a brilliant politician, a brilliant teacher might make an excellent judge or justice and greatly improve a court, relying on brilliant law clerks for the legal technicalities, which anyway receive far more attention from judges than they should, because most of the technicalities are antiquated crap.
I concede, however, that this is unlikely to happen anytime soon (if ever).
The reality today is that Trump and Senate Republicans continue effectively to seat judges who pursue their agenda– and many of these appointees will continue to rule from the bench for a very long time. Unfortunately, the previous administration was unable to fill vacant positions– as the Brookings report released today documents.