Biden’s on a judge-nominating streak – here’s a primer on federal courts

Written by William C. Duncan

July 29, 2021

A recent news story pointed out that President Joe Biden has begun his administration with a strong record for getting new federal judges confirmed. Since taking office, he has managed to secure the confirmation of eight federal judges, more than any president since Richard Nixon.

More well-known is President Donald Trump’s remarkable record in securing the confirmation of judges he nominated, especially appellate court judges. He appointed three justices to the U.S. Supreme Court, 54 judges to the U.S. Court of Appeals (for perspective, President Barack Obama appointed 55 in two terms) and 174 district court judges. As of January 2021, 28% of federal judges had been appointed by Trump (including 27% of district court judges). The Pew Research Center gives some context: “Obama appointed the largest share of currently active federal judges at 38%, while George W. Bush named 20% of the total. Clinton appointed 11% and George H.W. Bush and Reagan each appointed 2%.”

These statistics highlight the powerful perception that appointing federal judges is a critical priority for presidents.

But why is this significant?

Article III of the U.S. Constitution creates a Supreme Court and allows Congress to create lower courts. We currently have a three-tier system of federal courts: District Courts, Courts of Appeals, and the Supreme Court.

The first level is the U.S. District Court. Each state has at least one District Court, which is where federal lawsuits are initially addressed. When a federal trial is held, an individual District Court judge presides. The District Court essentially determines the facts (what actually happened) in a dispute and then applies relevant law (federal statutes enacted by Congress, administrative rules created by federal agencies, the Constitution, and relevant past appellate and Supreme Court rulings) to those facts to determine the appropriate outcome.

The profile of District Courts has risen significantly in recent years due to the practice of issuing nationwide injunctions against laws passed by Congress or administrative actions. For instance, the president can issue an executive order on immigration policy (this happened to Presidents Obama and Trump) only to have the order challenged by someone who argues that they personally are affected by it in Texas or Hawaii. Then, a single District Court judge in that state issues an injunction (an order to stop enforcement) that apples nationwide. The attraction for an advocacy group is obvious. In a state where the federal district court judges are thought to be sympathetic to your legal position, you can stop the new policy (and create a lot of work for attorneys representing the federal government) with a simple lawsuit.

Of course, one or both of the parties could (and often do) dislike that result, so they can appeal to the Court of Appeals. These are courts organized by region (called circuits, so they are also called circuit courts) which typically hear appeals of District Court decisions in panels of three judges. Their decisions take on an added significance because the reasoning they adopt in making a decision is binding on all of the District Courts within the circuit. Most appeals are not ultimately decided by the U.S. Supreme Court, so the circuit court opinions are very influential. (In the 2020-2021 Supreme Court term, the court heard 62 cases, 56 of which were appeals from the circuit courts. Circuit court statistics do not track the Supreme Court’s term, but for comparison, 50,258 cases were filed in the circuit courts in 2020. The Supreme Court typically receives 7,000 to 8,000 petitions for review each year.)

In some cases, if parties to a lawsuit do not like the decision of the panel that decided their case, they can ask for all the circuit court judges (or in really big circuits, a large proportion of them) to reconsider the panel’s decision.

So, what if different circuits resolve similar issues in different ways? Could a practice be constitutional in the Northeast but unconstitutional in the South? That does happen, and this is a major reason the U.S. Supreme Court might decide to take a case – to resolve a “split” between different circuits on an issue.

The Supreme Court used to take all of the cases that were appealed to it, but as the load of cases increased, many of those appeals were handled in a cursory way, and eventually the court was allowed to determine which cases it would hear on appeal. The way this works is that a party who wants to appeal a circuit court decision (or a decision from a state supreme court that raises a federal law question) petitions the court to accept their case.

If four of the nine justices agree to hear the case, the petition is granted, and the parties present their arguments (first in writing and then orally) to the justices, who decide the case and issue an opinion that is binding in cases raising the same issue in all lower federal courts.

This summary is, of course, simplified, but it provides a basic sense of why the ability to choose judges is such a significant power. A single federal judge at the lowest level of the judiciary can delay or prevent laws passed by Congress or executive actions from going into effect nationwide. Appeals court judges and Supreme Court justices can announce authoritative interpretations of the Constitution or other laws that similarly impact the entire nation.

In 2016, a major factor in Trump’s election appears to have been his ability to nominate justices to the Supreme Court. He explicitly campaigned on that issue. The issue is likely to increase in importance to voters going forward. Given the stakes, that’s probably inevitable.

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