Much frustration has been visited in recent weeks upon those who support President Donald Trump in his efforts to better secure our nation.
The source of that frustration has been certain federal judges, who have squashed the President’s executive orders to ban immigration to the United States from particular nation’s deemed as security risks.
Many are wondering: who are these judges? How did they get their jobs? Can they be replaced? Why do they decide the issue, instead of the Supreme Court?
A quick primer of the U.S. federal judicial system is in order to help fully understand the issue. Congress has established 13 courts of appeals, divided up based on geographical regions of the country. These are often referred to as the “circuit courts” in the media.
It is the job of the circuit courts to hear appeals of civil and criminal issues brought before them. This is what has been happening with the President’s executive orders. Attorneys General in state’s that disapprove of the orders are appealing their legality to the circuit courts in their geographical area of the country.
For instance, the Attorney General in Hawaii appealed the President’s most recent immigration executive order to the Ninth circuit court, which covers the western region of the United States.
The Ninth is generally known to be one of the most historically liberal circuits as to their rulings. It is also the largest circuit court, covering some 20% of the U.S. population. It is divided, as are each of the other circuits, into smaller geographical “districts”, which oversee any actual federal trials.
The 13 circuit courts do not actually hold trials. Instead, they hear arguments in the form of “briefs”, the arguments presented by lawyers for both sides of any matter brought as an appeal based on decisions in the lower courts. The circuit court judge hearing the case then makes a ruling.
Those circuit court rulings are not necessarily final. Any party not satisfied can appeal to the Supreme Court of the United States (SCOTUS) by asking for a “review” of the case.
The SCOTUS does not have to rule on every appeal. It could simply decline to hear the case, allowing the circuit court ruling to stand. SCOTUS typically hears only about 2% of the cases brought before it each year.
The Supreme Court tends to take on the most important cases, issues that will have great effect on the nation. SCOTUS rulings are final, and therefore of tremendous importance. Unless they overturn themselves in some future appeal, those rulings effectively stand as the law of the land.
Because the SCOTUS only hears those 2% of cases, the 13 circuit courts are extremely influential. Their rulings set court “precedents”, legal guidelines to follow, that influence lower localized courts throughout the land.
There are a total of 179 judges sitting on the various U.S. courts of appeals. Each of these judges is nominated by the President, and appointed only with the approval of a majority of the U.S. Senate. This includes the nine Justices sitting on the Supreme Court.
The current SCOTUS has been made up of just eight Justices since the death last February of Antonin Scalia. President Trump has nominated Neil Gorsuch for that opening. Gorsuch will faces his Senatorial nomination hearing process next week.
Replacing a federal judge is not an easy process. By law, the federal judges serve for life, unless they resign or are removed from office by impeachment. The impeachment process is basically a trial held in the U.S. Senate, and it is rare.
So in effect, federal judges serve for life. This not only provides tremendous job security, but it makes them some of the most important and influential individuals in the nation.
During his eight-year term, President Barack Obama had two successful SCOTUS appointments in the now 62-year old Sonia Sotomayor and 56-year old Elena Kagan.
He was also able to have 55 judges, more than 30% of the total positions, appointed to the circuit courts. Obama has left behind a judicial legacy that will influence the country for decades to come.
The circuit court judge from Hawaii who made the recent ruling on President Trump’s travel-ban executive order, Derrick Watson, was appointed by Obama. The two were classmates at Harvard Law School, graduating together in 1991.
Obama just happened to make an unexpected trip to Hawaii at the time that Watson was considering his ruling. It wasn’t a vacation, as no family was with the former President.
Hawaii is not a small place. It is a series of islands. Yet Obama publicly ate dinner, posing for pictures, at a restaurant just over three miles from the federal courthouse at which Watson would eventually announce his decision.
If you think politics doesn’t come into play in these types of court decisions, you are extremely naive.
So what are President Trump’s options if Attorneys General from liberal states are going to keep appealing his executive orders to liberal judges? The president’s best potential ally would be a reliably conservative Supreme Court.
The hope is that Gorsuch will be confirmed, becoming the ninth Justice on the SCOTUS. This would allow final votes to fall 5-4 in favor of the conservative side if all goes as hoped.
Gorsuch would join Chief Justice John Roberts (62) and Associate Justices Clarence Thomas (68), Samuel Alito (67), and Anthony Kennedy (80) as conservative-leaning judges on SCOTUS.
The current “liberal” SCOTUS Justices are Ruth Bader Ginsburg (84) and Stephen Breyer (78), joining Sotomayor and Kagan.
If attorneys for the President can get future executive orders regarding the travel-ban issue to be heard by a conservative SCOTUS, those orders could go into effect, hopefully better securing the nation.
The potential travel-ban appeal is just one issue that should demonstrate exactly how important getting Gorsuch confirmed is to the Trump administration, and to conservatives across the United States.
However, almost as important would be the appointment of conservative-leaning judges to the circuit courts as well.
There are currently 19 circuit court judicial openings. Of the 160 circuit judges seated, 90 were appointed by a Democrat POTUS, 70 by a Republican POTUS. President Trump could nearly even-up that divide by simply making the 19 appointments as soon as possible.
President Trump is going to influence the circuit courts over the next few years. There are 23 judges still seated across the circuit court system who were appointed by the first President Bush (9), President Reagan (12), and even two judges who were appointed in the 1970’s.
When you think of the term “elections have consequences“, this is exactly what you need to be thinking about as future presidential elections approach.