Major Decisions by Trump-Appointed Circuit Judges
- The Senate has confirmed 43 of President Trump’s circuit court judge nominees, at more than twice President Obama’s pace.
- Trump appointees now fill almost one of every four circuit court judgeships and are having an impact on the country’s jurisprudence.
- These judges have authored major opinions in a wide variety of fields, ranging from environmental to criminal law.
While the Supreme Court is the highest appeals court in the country, well over 99% of federal court cases go no higher than the circuit courts. The 12 regional circuit courts of appeals received almost 50,000 case filings in 2018. The Supreme Court receives 7,000 to 8,000 petitions for certiorari annually, then accepts a small subset, requiring the vote of four justices to take a case. Last year it decided 77 cases. Almost every federal case is appealable to the circuit court level by right, meaning the circuits must hear cases in virtually every area of law. The sheer volume of cases, and the rate at which they are decided, ensures that circuit courts play a pivotal role in determining the meaning of the Constitution, the scope of individual rights, and the legality of actions by the federal government.
The Influence of Circuit Judges: One Year’s Work
Trump-Appointed Judges Making a Difference
The Senate has confirmed 43 of President Trump’s circuit court judge nominees, a pace of 16 per year. In contrast, the Senate confirmed an average of seven circuit court judges per year during President Obama’s terms. Trump-named circuit court judges now fill 24% of the nation’s 179 authorized circuit court judgeships and are having an impact on the country’s jurisprudence.
Some circuit judges appointed by President Trump have now been on circuit courts for more than two years. These judges have made influential decisions affecting a wide variety of issues, particularly in areas where the Supreme Court infrequently hears cases.
For example, earlier this year in the case Protecting Air for Waterville v. Ohio Environmental Protection Agency, Trump appointee Joan Larsen of the 6th Circuit protected a natural gas pipeline from challenge by environmentalists. The court ruled that the activists had to show that some specific individual member of their organization had been harmed in order to have standing and proceed with their case. Standing requirements are a critical way for courts to reduce litigation that could otherwise impede public works projects.
Average Annual Rate of Circuit Court Judge Confirmations by President
Judge Amy Barrett authored an opinion for the 7th Circuit that prevented trial lawyers from launching frivolous lawsuits under the Americans with Disabilities Act. The court held in Carello v. Aurora Policemen Credit Union that the plaintiff – a “tester,” who was neither eligible for nor interested in joining the credit union – did not have standing to sue over its inaccessible website. The opinion is a roadblock to future lawsuits that abuse the ADA to get money from small businesses across the country.
Trump-appointed judges also have played a role in immigration law. In the 11th Circuit, Judge Kevin Newsom wrote the controlling opinion in Barton v. U.S. Attorney General in 2018. The court held that lawful permanent resident aliens are ineligible for cancellation of removal if they commit criminal offenses, even if they are not currently seeking admission or readmission. This ruling increases the incentive for lawful residents to follow the law.
In the same vein, Judge David Stras of the 8th Circuit wrote an important opinion on asylum law in the case Burka v. Sessions. The court held that it did not have jurisdiction to review an immigration judge’s factual finding that the disappearance of the plaintiff’s husband was not a change in circumstance that excused her failure to file an asylum application within one year of her arrival in the United States. A holding to the contrary might have led to a sharp increase in asylum litigation.
Judge Britt Grant of the 11th Circuit wrote a major criminal law opinion upholding the death penalty in Knight v. Florida Department of Corrections. The Supreme Court in 2016 had ruled that Florida’s sentencing system for death penalty cases violated the Sixth Amendment. Judge Grant ruled that the Supreme Court’s decision did not apply retroactively to a death sentence issued before the Supreme Court’s new rule.
In the 9th Circuit, Trump-appointed judges have issued powerful dissents designed to catch the attention of the Supreme Court on a variety of constitutional issues. In one free-exercise case, Biel v. St. James School, Judge Ryan Nelson issued a scathing dissent from the court’s denial to rehear the case en banc. He said of the court’s refusal to apply the so-called ministerial exemption, under which religious institutions are free to hire their own religious leaders, “we exhibit the very hostility toward religion our Founders prohibited and the Supreme Court has repeatedly instructed us to avoid.”
Finally, Judge Don Willett of the 5th Circuit this year ruled in Collins v. Mnuchin that the law establishing the Federal Housing Finance Agency represented an unconstitutional violation of separation of powers. Congress made the head of the FHFA removable only “for cause,” weakening the president’s ability to control inferior officers. Judge Willett’s opinion bears strong hallmarks of the originalist leanings of judges appointed by the administration. He wrote: “No mere tinkerers, the Framers upended things. Three rival branches deriving power from three unrivaled words – “We the People” – inscribed on the parchment in supersize script. In an era of kings and sultans, nothing was more audacious than the Preamble’s first three words, a script-flipping declaration that ultimate sovereignty resides not in the government but in the governed. … But this iron truth endures: Even the most well-intentioned bureaucrats, no less than presidents, legislators, and judges, are bound by constitutional principles. An agency is restrained by the four corners of its enabling statute and ‘literally has no power to act ... unless and until Congress confers power upon it.’ And Congress, when creating agencies, is itself constrained – at all times – by the separation of powers.”
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