U.S. COURTS: Trump Relies on Conservative, Federalist Society to Select Candidates for Federal Courts.

 

The U.S. Constitution provides that the president shall periodically nominate candidates for openings in the federal courts, including the Supreme Court. The nominations must then be confirmed by a majority of the U.S. Senate.

 

Historically senators have given great deference to the president’s nominations even when there has been reason to believe that the candidate might not be qualified. However, when Ronald Reagan’s nomination of the very conservative but able appellate judge Robert Bork was defeated by the Democratic majority in the Senate, appointments to federal court became more contentious and patently political.

 

During the final years of Barack Obama’s presidency, the Republican majority in the Senate refused to approve many of his Federal court nominations believing that if a Republican were elected in 2016, they would be able to fill those vacancies and others with like-minded judges.

 

During his campaign for the presidency, Donald Trump promised that if elected his judicial nominees would “all [be] picked by the Federalist Society.”

 

The Federalist Society is an organization composed of lawyers whose members believe that the purpose of the government is to preserve freedom and that separation of powers - executive, legislative, judiciary - is a fundamental element of the U.S. Constitution.  They also believe as did their namesake, James Madison, the fourth U.S. president, in the concept of judicial restraint.  Members of the Federalist Society believe that judges should only say what the law is and not what they believe it should be.  As such, their views impact issues such as healthcare, immigration, abortion and race relations.

 

To date, President Trump has nominated several candidates for the federal courts who have been recommended by the Federalist Society.  Because the Republicans hold a majority in the Senate (51-49) almost all of his nominees have been approved, including the most recently appointed member of the Supreme Court, Neil Gorsuch.

 

The fact that Republican senators refused to approve most of the President Obama’s judicial nominees during his second term also meant that when President Trump took office, he had an unusually large number of judicial vacancies to fill.  The result may be that one of President Trump’s greatest successes during his first year in office will prove to have been the filling of the federal judiciary with a growing number of judges who base their decisions solely on the wording of the statute or the Constitution.  Finally, President Trump has stated that he will only appoint judges who are pro-life.  

 

By James C. Moore
Long-time member of the UIA and mediator and arbitrator in New York.