As President-elect Donald Trump continues to seek out structural flaws in the United States Constitution, it makes sense for us to take a look at the already-strained judicial branch. While popular attention has been focused on the Supreme Court seat made vacant by the death of Antonin Scalia, and the Senate’s refusal to hold confirmation hearings for Merrick Garland, that’s hardly the only structural problem currently facing the federal courts.
Carl Tobias writes:
There are now 94 unfilled openings on federal circuit and district courts — a vacancy rate impeding the delivery of justice.
Senators’ lengthy absence during the election season — which followed a prolonged summer recess and a truncated September session — means no judge has been confirmed since July 6. The election results likely will prompt yet more judges to retire or assume senior status (in which they manage reduced caseloads), which means this number could easily swell to 110 openings.
Tobias focuses on the issue that Obama’s nominations for those openings will expire at the end of his term, and it may take a long time for Trump to get past more pressing parts of his agenda and make nominations. I have a different question: what if Trump doesn’t nominate any judges at all?
Article II, section 2, paragraph 2 of the Constitution states:
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
We’ve got a “shall appoint” in there, but Trump so far has been notably indifferent to his Constitutional obligations, and this is a particularly weak one. Tobias points out that of thirteen court vacancies in Texas, Obama hasn’t even bothered making a nomination for eight of them. So it’s entirely conceivable that Trump could simply neglect this duty indefinitely. (The United States Courts website currently lists 104 open judgeships and 59 pending nominations.)
This would undoubtedly be anathema to the faction within the Republican Party which has focused on building low-level power through state legislatures, as district judges would meet similar logic. Yet it’s not at all clear where that faction falls within the burgeoning conflict over Trump. And declining to nominate their judges may be one of the President-elect’s few concrete weapons against that group. We could see this result out of neglect, but we could also see it out of malice in intraparty conflict.
There are currently 860 federal judgeships. 104 openings is already a significant burden on the federal court system, and that number will only grow. Sixteen additional judges are currently scheduled to retire or assume senior status between now and September 2017.