Federal Appellate Court Nominees May Be More Important Than SCOTUS Picks


Jenna Ellis Constitutional Law Professor
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If the past few months in the Ninth Circuit have taught us anything, it’s that the person occupying the office of President of the United States is critically significant to the future of the judicial branch—and not just the Supreme Court bench. While most of the campaign arguments focused on Trump’s potential Supreme Court nominee and conservatives have certainly celebrated Justice Neil Gorsuch’s confirmation, a less discussed and arguably even more important constitutional provision allows the president also to nominate individuals to fill federal judicial vacancies.

This isn’t just one or two people out of a high council of nine like the Supreme Court. This is literally hundreds of judgeships. As an example of the impact this presidential power has, the Ninth Circuit currently has 43 judges on its roster, with 30 of those judges appointed by a democratic president, and of those appointments, the most were filled by Bill Clinton. There is a reason the Ninth Circuit is composed of these particular judges—and that reason is the sitting president at the time of judicial vacancies.

Neil Gorsuch was nominated to the Tenth Circuit previously by George W. Bush, and confirmed unanimously. Likely, had he not been appointed by Bush, he would never have reached the Supreme Court. What one president did ten years ago affected all of those intermediate cases, including cases like Little Sisters of the Poor and Hobby Lobby, which did eventually reach the Supreme Court.

Presidential powers matter for lower federal courts because most cases in any given federal court of appeals will never reach the Supreme Court. Constitutionally, the Supreme Court doesn’t actually have to hear any cases, except under very limited circumstances and types of cases, and according to the Supreme Court itself, hears roughly 80 cases out of 8000-9000 appeals annually.

That leaves approximately 7000-8000 cases that are permanently arbitrated by a lower court. Pragmatically, when the Supreme Court declines to a hear a particular case, they leave in place the lower court’s holding and the case as to those particular parties has reached final judgment. There may be any number of reasons the Court declines to hear a case—the biggest reason is the sheer volume of appeals. Even if enough members of the Court though every appeal a worthy claim in a given year, it simply logistically could not hear every case or greater than 1 percent of appeals.

The Supreme Court is a complex part of the judicial branch that, unlike other inferior appellate courts, is not required to hear every appeal filed. Logistically, if four members of the Court agree to hear a case, the Supreme Court will hear it. But what exactly goes into those decisions is anyone’s guess, based on the current composition of the Court, recent opinions, political considerations, and unsettled law.

Thus, most of the business of American jurisprudence is done at a lower-level court. The Ninth Circuit’s opinion as to the “immigration ban” executive order will stay in place, absent a successful appeal to the Supreme Court. It’s the same with any issue arising before a federal appellate court. So while the Supreme Court is absolutely important, we must remember the enormous impact for good or bad that one president can do to the composition of the federal judicial system in just one term.

Today, President Trump announced nominations of several key vacancies in federal courts, and thanks to the ever evolving messaging system that social media has become, the twitter post received more than 700 “likes” in the first 45 minutes. I’m frankly appalled it’s that low of a number. Out of the 14.3 million followers of @WhiteHouse, only a paltry 700 found this post worthy enough to like? I’d love to know how many people actually clicked on the link and read anything about the nominees.

If this announcement goes the way of presidents past, the crucial judicial branch nominees and the eventual judges that actually arbitrate your and my rights on a daily basis will receive a passing glance while we turn our attention to more important things, like Caitlyn Jenner’s new book.

But if you’re a citizen willing to pay attention, here’s the list and bios of the announced nominees.

Jenna Ellis is an attorney, a fellow at the Centennial Institute, a constitutional law professor at Colorado Christian University, and the author of The Legal Basis for a Moral Constitution.