How Trump plans to remake the lower courts

To much attention and fanfare, President Trump nominated Judge Neil Gorsuch for a seat on the United States Supreme Court.

But presidents have the constitutional authority not only to nominate individuals to fill vacancies on the Supreme Court, but also to nominate judges for the lower federal courts.

Last month, we got an initial, but limited, view into how Trump would populate the lower federal courts with an initial nomination — of federal district judge Amul Thapar for a seat on the United States Court of Appeals for the Sixth Circuit.

Earlier this month, Trump announced a slate of 10 nominees for lower federal court judgeships. This slate provides greater insight into how Trump will look to reshape the lower federal courts.

{mosads}First, two of the nominees — Justice Joan Larsen (currently a Justice on the Michigan Supreme Court) for a seat on the United States Court of Appeals for the Sixth Circuit and Justice David Stras (currently a Justice on the Minnesota Supreme Court) for a seat on the United States Court of Appeals for the 8th Circuit — were on the list of 21 names from which, during the presidential campaign, Trump promised to select his nominee to replace deceased Supreme Court Justice Antonin Scalia (Trump ultimately nominated Judge Gorsuch, who was on that list.).

The fact that Trump continues to select names from that list suggests continued influence of the Federalist Society and the Heritage Foundation. The right leaning think tanks were instrumental in helping the Trump campaign to assemble the list.

It also suggests that the list (or at least some updated version of it) may remain relevant if another Supreme Court vacancy arises during the Trump presidency. 

In the past, presidents have appointed state supreme court justices to federal courts of appeals before subsequently nominated them to the U.S. Supreme Court. 

For example, President George H.W. Bush did just that with David Souter, then a Justice on New Hampshire’s Supreme Court. Bush nominated him first to the U.S. Court of Appeals for the First Circuit, and then the Supreme Court.

Second, the slate of lower court nominees may shed some light on the types of ideologies for which Trump will look in his judicial nominees (or at least the outward signs of such ideologies).

Commentators have noted that two nominees — Justice Stras and Amy Coney Barrett (currently a law professor at the University of Notre Dame, nominated for a seat on the U.S. Court of Appeals for the 7th Circuit) — served as judicial law clerks to conservative Supreme Court justices Clarence Thomas and Scalia, respectively.

However, it is interesting to further observe that one nominee, Kevin Newsom (nominated for a seat on the U.S. Court of Appeals for the 11th Circuit), clerked for Justice Souter (who, though appointed to the Supreme Court by a Republican president, was hardly a conservative stalwart).

And another nominee, David Nye, an Idaho state court judge whom Trump has nominated for a seat on the Idaho federal district court, was nominated by President Obama for exactly the same position in 2016. Nye’s nomination lapsed without Senate action.

Third, among Trump’s nominees are two law professors: Professor Barrett now teaches at the University of Notre Dame, and Justice Stras was on the law faculty of the University of Minnesota before his appointment (and then election) to the Minnesota Supreme Court.

To the extent this trend continues, it hearkens back to the 1980s, when President Ronald Reagan appointed several legal academics. Even Obama, who had served as a lecturer at the University of Chicago Law School, did not make a practice of nominating academics to the courts.

Fourth, one nominee that is likely largely to pass under the radar may be particularly interesting. Trump has nominated Damien Schiff to a seat on the United States Court of Federal Claims. 

This little-known court (it is organized under Article I, not Article III of the Constitution, with its judges enjoying not life tenure but terms 15 years) hears claims by private actors against the federal government for monetary damages. Indeed, a large part of the Court of Federal Claim’s docket consists of claims for “Takings” of private property. 

The nomination of Judge Schiff is especially interesting since Schiff has been serving as a lawyer with the Pacific Legal Foundation, a self-described national conservative/libertarian public interest law firm.

In that capacity, Schiff has argued in favor of a broad understanding of compensable Takings. Thus, his nomination to the Court of Federal Claims may signal the president’s desire to augment the protection of private property rights against government infringement.

This slate of lower federal court nominees is a sizeable one. But it is only the first. And, according to the administration, we will see additional slates on an ongoing basis.

There are certainly enough vacancies, currently some 150 positions, on the lower federal courts to keep the White House busy on this score. 

As these nominations roll in, we will gain more traction on how Trump plans to remake the federal judiciary. 

Jonathan R. Nash is the Robert Howell Hall Professor of Law at Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. Follow him on twitter at @JonathanRNash.

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