Linda Greenhouse ’78MSL, a longtime legal writer for the New York Times, is the Knight Distinguished Journalist in Residence and Joseph Goldstein Lecturer in Law at the Law School. Greenhouse recently offered the Yale Alumni Magazine her analysis about how the Trump administration will shape the next four years with regard to the courts. Read the full piece featuring faculty around the University here.
With the Senate confirmation process in Republican hands, President Donald Trump is in a position to reshape the federal judiciary, not only by filling the nearly 100 vacancies that now exist, but by filling dozens or even hundreds more when sitting judges create vacancies by retiring or, more often, moving to part-time “senior status.”
While every Supreme Court vacancy is major news, deservedly so, there is more turnover on the lower federal courts than is commonly recognized. In eight years in office, President Obama filled 329 vacancies on the federal district courts and courts of appeals, more than one-third of the 852 congressionally authorized judgeships. With the Supreme Court deciding so few cases these day—only about 70 in recent years, out of more than 7,000 new appeals it receives—staffing the lower courts is a matter of great consequence. Democratic appointees hold a slight edge in both the district and appeals courts, and that will surely change. Since taking control in 2015, the Senate’s Republican leadership drastically slowed down the confirmation process, resulting in the high number of current vacancies.
Will the new president be able to reshape the Supreme Court itself? Of course, he arrives with one seat to fill, thanks to Republican obstruction of Chief Judge Merrick Garland, Obama’s eminently qualified nominee for the vacancy created by Justice Antonin Scalia’s death in February 2016. Justice Scalia anchored the court’s conservative wing, and his replacement won’t tip the current knife-edge ideological balance.
After that, who knows? Maybe Trump will get lucky, like President Richard M. Nixon, who (until his luck ran out) got four Supreme Court vacancies that enabled him to change the court’s trajectory in major ways. Or maybe he will be unlucky, like President Jimmy Carter, who got no vacancies in four years. With three justices past or approaching 80—two on the liberal side, Ruth Bader Ginsburg and Stephen G. Breyer, plus the key man at the center of the court, Anthony M. Kennedy—many people assume that more vacancies are inevitable in the near future. That is not necessarily the case. Justice John Paul Stevens retired in 2010 at 90, and it’s possible to view his retirement as premature; he is still actively writing, speaking, and traveling at 96.