Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, November 7, 2016

The Election and the Courts


It is almost over folks!  Well, sort of.  Although the election is just a day away, the impacts of the election on the federal courts will be felt for years, even decades, to come.  The next president will have the chance to make a major mark on the Supreme Court and the Courts of Appeal--if the Senate cooperates.  Let's look at some of the key changes that we might see post-election.

The Supreme Court:  The unexpected passing of Justice Scalia in February 2016 left the high court short one justice.  President Obama's nomination of Merrick Garland to fill the vacancy has languished in the Senate for over 200 days.  While Supreme Court nominations are usually a topic in presidential elections, they have been at the forefront this time around.  Not only is Justice Scalia's seat vacant, but there are currently three justices on the Court over the age of 75.

Republican nominee Donald Trump has released two lists of possible Supreme Court nominees (the combined list can be viewed here).  The second list was provided after some criticized his original list as not sufficiently diverse.  While his list includes some noted conservatives legal minds, noticeably absent are judges from the D.C. Circuit or practitioners in the D.C. area.

Democratic nominee Hillary Clinton has not released a list of potential nominees.  Lydia Wheeler of The Hill has interviewed "well-connected groups" about Clinton's potential picks and come up with a list that is not too different from President Obama's list to replace Justice Scalia.  Merrick Garland, Sri Srinivasan, and Paul Watford all appear on the list.

Libertarian nominee Gary Johnson has also supplied a list.  His list features noted libertarian legal scholars, like Randy Barnett and Jonathan Turley, and D.C. Circuit Judge Janice Rogers Brown.

These list may not be worth much, however, if the Senate refuses to cooperate.  In recent days there has been speculation that Senate Republicans will try to shrink the size of the Supreme Court if Clinton is elected president and they keep the Senate.  Since there is no way that they could do this through the regular law-making process (Clinton would surely veto any attempt to amend 28 U.S.C. § 1), they would have to accomplish it by simply not confirming any nominees.

Lower Courts:  According to the Administrative Office of the United States Courts, there are 13 pending vacancies to the Courts of Appeal and 80 pending vacancies to the District Courts.  The new president will get a chance to fill these vacancies and any others that occur during the next four years. Depending on their length of service, federal judges can start retiring at the age of 65.  According to 2014 Congressional Research Service report, at the end of 2013, "32.5% of active circuit court judges were eligible, based on age and length of service as Article III judges, to assume senior status."  Nearly half of these judges were appointed by President Bill Clinton, which means that replacing these judges with Republican nominees would potentially change the ideology of the federal circuit courts.  Once again, whichever party controls the Senate will have the opportunity to influence how these seats are filled.

Tomorrow will be a big day.

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