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The real name of the judicial game is not the Supreme Court, but the federal judiciary

Earl O. Hutchinson

“But it’s not just the Supreme Court, there are a lot of vacancies at both the court and district court level.” Senate Majority Leader Mitch McConnell’s words on the importance of federal judiciary appointments were meant to placate Trump. He’s so far struck out on just everything he’s tried to get the GOP-controlled Senate to do. But McConnell’s quip about the importance of the federal appointments, was if anything, an understatement. The name of the judicial selection game for the past three decades has been the ferocious battle over a Supreme Court nominee. It has drawn much public and media attention and speculation. It has ignited vicious non-stop partisan political and ideological warfare between the GOP and Democrats and legions of public interest groups.

However, a president’s picks to the federal bench is another matter. They have flown for the most part way under the public and media radar scope. There isn’t one pick, as with a Supreme Court pick, to focus on, but dozens. At the end of Trump’s first year in the Oval Office, there could be more than 100 openings on the 13 federal appellate courts. A President’s nominees are mostly nameless, often faceless judges who have labored largely in the public and media shadow for years. So, when one such as Trump’s one and only High Court pick, Neil Gorsuch, was nominated, there was a head long scramble to dig up whatever could be found about him precisely because like most appellate court judges he was virtually invisible to the public for so long.

But these are the judges who do far more than the Supreme Court can to impact, mangle, and entomb law and public policy for decades to come. They have a lifetime appointment. They wildly dwarf the number of cases that the Supreme Court will ever hear, roughly 60,000 a year to the Supreme Court’s roughly 75 cases. These judges are the real judges of last resort for a controversial legal and impactful case. Their rulings are the ones that stand as binding law for not just years, but potentially generations to come. These judges are anything but non-partisan and objective. Many of them are just as hidebound politically partisan as a Clarence Thomas or Gorsuch. That partisanship often comes through in their rulings and opinions on hot button cases that involve civil rights, civil liberties, the environment, and what corporations can and can’t do.

Let’s take just one area of law and public policy; in this instance environmental cases. A 25-year study by George Washington University, from 1970 to 1994, found that by a wide margin Republican-appointed judges turned back challenges by individuals and environmental groups challenging decisions of the Environmental Protection Agency in the overwhelming majority of cases. Democratic-appointed judges by contrast accepted challenges in the majority of cases. The study was done almost 20 years ago and the numbers would almost certainly be the same if not higher in assessing cases that even more ideologically bent federal appeals court judges have heard in the past two decades or tossed in everything from the environment to civil rights.

Appeals court judges take an oath to render the law fairly and impartially. They like to think that they do just that. There are few cases where an appeals court judge will take a position on a case that openly displays their partisan bias. Yet, they all hold political views, some very strong political views, and that inevitably colors how they interpret facts and testimony in a particular case. A judge can find a case law rationale for any ruling that he or she wants to make on a particular case that more often than not conforms to their political and ideological views.

GOP presidents egged on by conservative legal and public interest groups know this, Trump most of all. He did not need McConnell to remind him of the importance of stuffing the federal judiciary with as many hardline, strict constructionist judges as he can find. Democrats know this too. And since federal appeals court judges need not be confirmed with a 60-vote count, Democrats are outnumbered and outgunned with scarce weaponry in their arsenal to try and slow down the Trump and the GOP’s federal court packing scheme. Their one weapon, that has driven McConnell to rage and a determination to do something about it, is the use of the “blue slip.” With this, a Senator can block for a time the confirmation of a judicial nominee in their home state. If that weapon is taken away, then the floodgates are wide open for dozens of Trump’s picks and their almost certain swift confirmation.

They’d be there for life. They could do a total conservative remake of the federal bench. They would provide Trump or another GOP president with a large crop of hardline conservative legal guns to pick from for the next SCOTUS vacancy that fit the mold of his judicial heroes, Scalia and Thomas. It’s this scary prospect that makes the federal judiciary as important as the Supreme Court.

Earl Ofari Hutchinson is an author and political analyst.