Some day, conservative critics of President Trump will have to reconcile their vehement opposition to him with their love of the Constitution. The latter is most definitely benefiting from the president’s massive impact on the federal bench, one that extends far beyond Justice Neil M. Gorsuch on the Supreme Court.
The Supreme Court, though by far the most important court, still only reviews 80 or so appeals court decisions per year. The appeals courts, however, are burdened with massive amounts of decision-making year-round. Federal appeals court judges completed 96,000 case “participations” in 2017. (A case participation means that one judge heard an oral argument or reviewed an appeal on briefs. Thus, when a single appeal is heard before a panel of three judges, it is three participations.)
Trump has appointed 21 of the 167 current full-time judges and intends to fill another 20 or more vacancies by year end. The president and the GOP-controlled Senate have thus already put one-eighth of the federal appeals bench in their seats. Each of those new appointees — all principled “originalists” in the mold of the late Justice Antonin Scalia — will have more than 400 participations in 2018 alone. There are 10 more appeals court nominees in the queue and a dozen other vacancies awaiting nominees beyond those, and Senate Republicans have made these positions their priority (unless there is a retirement on the Supreme Court). With the age of initial appointment dropping and retirement age advancing, we can reasonably expect Trump-appointed judges to average 20 years on the bench. Expect a total of 40 new appeals court judges by the end of Trump’s first two years.