December 17, 2016
Is there any way to predict how Trump judges will develop sentencing jurisprudence?
The question in this post is prompted by this new Politico article headlined "Trump set to reshape judiciary after GOP blockade: The Senate left town with 99 judicial vacancies, as well as the current Supreme Court opening." Here are excerpts:
I have truly no idea whether or how or when Trump insiders will focus seriously on filling judgeships in lower federal courts, but the persons who end up filling all these vacancies will certainly have a major impact on sentencing law and policy as developed through constitutional and non-constitutional sentencing jurisprudence. When and how Prez-Elect Trump names a replacement for Justice Scalia in the weeks ahead may provide some window into how the Trump Administration will approach lower federal court appointments, but I have a feeling judicial appointments could be a kind of "work-in-progress" for the entire first term of the Trump Administration.
Mitch McConnell’s refusal to confirm many of President Barack Obama’s judicial nominees has set the table for Donald Trump to dramatically reshape the judiciary over the next four years, as the Republican Senate set a modern record for the fewest confirmations of lifetime judicial appointees.
The Senate GOP confirmed just 20 lifetime judicial appointments to district and appeals courts in its two years in the majority, the lowest number by far in the past 28 years, according to a Congressional Research Service report obtained by POLITICO. That means that President-elect Trump will have major sway over the courts next year, starting with the Supreme Court and going all the way down to the district level.
The Senate left town last week with 99 judicial vacancies covering district and appeals courts, as well as the current Supreme Court opening. There are 52 Obama nominations to those courts pending, with Supreme Court nominee Merrick Garland the most prominent nominee still waiting for action.... Most, if not all of Obama's nominations, will be wiped away next year by Trump and Senate Republicans.
There are also 38 judicial emergencies, according to the federal judiciary. Republicans had mulled confirming some judges if Hillary Clinton had won, GOP sources said before the election, but since Trump prevailed Republicans believed there was little reason to do any judicial confirmations in the lame duck. The Senate last voted on a judge on July 6, when Brian Martinotti was confirmed to a New Jersey district court....
Over eight years, Obama got roughly the same number of judges confirmed as Bush. The Senate confirmed 323 district, circuit and Supreme Court judges for Obama and 322 for Bush, according to CRS. President Bill Clinton enjoyed 370 such confirmations. That’s led McConnell to claim that he treated “President Obama fairly with respect to his judicial nominations."
But Democrats said they had treated Bush far better in his last two years as president. “Our constitutional duty of advise and consent is not about comparing one president to another. It is to ensure our Federal courts have the judges they need,” said Sen. Patrick Leahy (D-Vt.), the outgoing top Democrat on judicial matters, in a statement as Congress left town last week. “Right now, that is not the case when one of every nine judgeships across the country is vacant.”
December 17, 2016 at 05:50 PM | Permalink