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November 7, 2019

Any "hot takes" on how a Trump judiciary might be changing sentencing law and practice?

The question in the title of this post is prompted by milestones reached and celebrated by the Trump Administration yesterday.  This Bloomberg article, headlined "Trump Boasts of GOP Success Confirming His Judicial Nominees," provides some background:

President Donald Trump celebrated Republicans’ record on confirming federal judges on Wednesday, saying his administration has done better than any other in terms of “quality and quantity” of judges appointed to the bench....

The president’s comments came as the U.S. Senate is set to confirm Trump’s 45th circuit judge this week.  With that vote, he will have appointed about a quarter of all appeals court judges.

Trump has won confirmation of a total of 158 federal judicial nominees, including Supreme Court justices Brett Kavanaugh and Neil Gorsuch.  The president, who on Wednesday named 10 additional judges he intends to nominate, is likely to see more win approval this year than during the first two years of his presidency combined.

The pace of confirmation far exceeds those of his immediate predecessors, a fact that Trump routinely notes in public comments.  The GOP’s Senate majority leader, Mitch McConnell, has leveraged his party’s control of the chamber to flood the federal courts with Trump’s picks.

The appointments have led to the Third Circuit Court of Appeals -- which hears cases from Pennsylvania, New Jersey and Delaware -- flipping from a majority of judges appointed by Democratic presidents to a majority appointed by Republicans.  By the end of the year, similar changes are likely in the Second Circuit, which includes New York, Connecticut and Vermont, and the Eleventh Circuit, which covers Alabama, Florida and Georgia.

During President Barack Obama’s second term, McConnell held up nominees -- including a Supreme Court vacancy created by Justice Antonin Scalia death in 2016 -- leaving 86 district court vacancies and 17 circuit court vacancies for Trump to fill.  Trump has repeatedly mocked Obama for leaving the positions unfilled....

“Nobody has done more to change the court system in the history of our country than Donald Trump,” McConnell said Monday at a rally in his home state of Kentucky with the president. “And Mr. President, we’re going to keep on doing it.  My motto is: Leave no vacancy behind.”

Because "the court system" plays a fundamentally central role in federal sentencing decision-making, if Prez Trump's nominees are dramatically changing the court system in our country then one might expect to also see a dramatic change in sentencing law and practice.  But I do not sense there has been major change in this arena (though I do not follow lower court rulings in this space quite as closely as I did in the immediate post-Booker days).

Of course, the jury is still out on how Justices Gorsuch and Kavanaugh will impact SCOTUS sentencing jurisprudence as replacements from Justices Scalia and Kennedy.  But SCOTUS decides so few sentencing cases while the circuit courts decide so many, and district judges do all the actual sentencing.  And so I keep gravitating to the idea that a Trump judiciary might well be changing sentencing law and practice.  But does anyone think the Trump judges actually are making a big difference?

November 7, 2019 at 01:58 PM | Permalink

Comments

President Reagan put judge Kozinski and judge Posner on the circuit, and no one ever heard from them again. I doubt President Trump will have any bigger impact.

Posted by: O'Scannlain | Nov 7, 2019 6:45:02 PM

Any thoughts, O'Scannlain, about which Trump circuit nominees are likely to be this era's judge Kozinski and judge Posner?

Posted by: Doug B. | Nov 8, 2019 9:22:07 AM

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