May 8, 2018

Focusing on the Law


  • Senate Republicans have confirmed 15 circuit court judges since President Trump took office, the most by this point in any presidency over the past 30 years.
  • A review of their opinions shows the new judges refocusing the courts on the rule of law, rather than on policy preferences.
  • The circuit courts often have the final say on the law because the Supreme Court takes up only a tiny fraction of cases decided by lower courts. 

President Obama reshaped the federal judiciary by appointing judges he thought would rule according to liberal policy preferences rather than the law. In 2016, Reuters noted President Obama’s “appointments of dozens of judges to the country’s influential federal appeals courts have tilted the judiciary in a liberal direction that will influence rulings for years to come.” When President Obama took office, only one of the 13 circuits had a majority of its judges appointed by Democrats. When he left office, nine of the 13 had liberal majorities.

Number of Circuit Court Judges Confirmed by May 4 in 2nd Year

Circuit Court Judges Confirmed

Because the Supreme Court reviews only a small fraction of cases each year, the appeals courts are often the final arbiter of the law for their circuits. As of June 30, 2017, the U.S. Courts of Appeals had resolved about 56,000 cases over the previous year – 36,000 of them on the merits. During the same period, the Supreme Court issued merits opinions in just 69 cases.

As of May 4, 2018, Senate Republicans have confirmed 15 judges to the U.S. Courts of Appeals this Congress, out of 179 total authorized judgeships. Trump judicial appointees now sit on eight of the 13 circuits.

President Trump has nominated nine people to fill 18 current vacancies and three people to fill nine future vacancies on the circuit courts. The Senate is expected to confirm six circuit court nominees this week.

Circuit Court Seats to Be Filled

Circuit Court Vacancies

President Trump has focused on restoring the courts by appointing qualified judges who are ready to uphold the law. These new judges have already made a significant difference in the circuit courts. For instance, since being elevated to the Sixth Circuit in May 2017, Judge Amul Thapar has written 30 opinions. Judge Ralph Erickson, who was elevated to the Eighth Circuit in October 2017, has written 10 opinions. Judge Kevin Newsom has written eight opinions since joining the Eleventh Circuit in August 2017. 


Beyond the numbers, the opinions issued by recent circuit court appointees have demonstrated a strong commitment to the rule of law and the Constitution.

Last month, Judge Stephanos Bibas, who joined the Third Circuit in November 2017, considered a case in which a Guatemalan national addicted to heroin sought to block his deportation under the Convention Against Torture. The man asserted he was “a member of the proposed social group of drug addicts in Guatemala,” and if he were returned to Guatemala, he would start using heroin and be forced into an abusive drug treatment facility. Judge Bibas joined both of his colleagues on the panel in rejecting the claim, relying on statute and precedent to hold that the petitioner did not meet the standards required for relief under the Convention Against Torture.

Also in April, Judge Don Willett, who was appointed to the Fifth Circuit in early January 2018, rejected an attempt by a man seeking to reduce his sentence for trying to purchase 144 grenades. The appellant told an undercover government agent that he wanted “as many real live grenades” as he could get for a “cartel war” in Mexico. He got 143 fake grenades and one live one. He contended that his sentence should reflect only the live weapon he obtained, and not the fake ones. Judge Willett followed Supreme Court precedent instructing him to look to the commentary in the Sentencing Guidelines Manual, which made clear that the sentence should reflect any grenades “sought to be obtained.” As Judge Willett put it, the “plan for live grenades fell short, but close counts in horseshoes and hand-grenade cases.”

In a unanimous February 2018 opinion, Judge Thapar caught a key jurisdictional issue a district court had ignored in one case. The parties were in federal court based on “diversity jurisdiction,” which requires all defendants to be citizens of different states than all plaintiffs. As Judge Thapar pointed out, however, the filings suggested that the plaintiff and a defendant were both Michigan citizens. Because the district court failed to consider the jurisdictional arguments, the Sixth Circuit panel, led by Judge Thapar overturned the lower court’s decision.

Issue Tag: Judiciary