par Nate Raymond
Whether it's Democratic Vice President Kamala Harris or former Republican President Donald Trump, the winner of the November 5 U.S. presidential election will face the same reality: fewer opportunities to reshape the judiciary at the federal level.
By the time of the transfer of power between Joe Biden and his successor at the White House, on January 20, nearly half of the 890 – for life – federal judge positions across the country will have been assigned, in just eight years , by the Democratic president and his Republican predecessor Donald Trump.
During his term, Donald Trump appointed three judges to the Supreme Court, compared to a single appointment made by Joe Biden. The highest court in the United States has thus clearly shifted to the conservative side, with a majority of 6-3, highlighted in June 2022 with the revocation of a ruling guaranteeing the protection of the right to abortion.
Joe Biden and Donald Trump have both generally favored a rejuvenation of the federal judiciary, bringing about a generational shift.
One of the consequences: the “flow” of judges eligible for so-called “senior” status has slowed, and with it the number of vacant positions. This status is a form of semi-retirement that judges aged over 65 can take after fifteen years in office, allowing the president to appoint a new judge.
According to judicial data this month, 67 federal positions are vacant or will become vacant, based on the number of judges who have expressed their intention to obtain senior status. However, Joe Biden has already transmitted to the Senate the names of 28 candidates called to occupy these positions.
Separately, 247 other judges – 131 appointed by Democratic presidents and 116 by Republican presidents – will be eligible for senior status over the next four years, which could open up new positions, according to a report from the American Constitution Society (ACS ), a progressive legal group.
However, it is not unusual for judges not to retire when they are entitled to do so. Research shows that it is increasingly common for a judge of retirement age to wait until the tenant of the White House is at that time from the same party as the one who appointed him.
NO UPset OF THE IDEOLOGICAL BALANCE OF THE SUPREME COURT
If this trend is confirmed, the winner of the November 5 vote could have chosen by the end of his mandate a number of judges much lower than those appointed by Donald Trump (234, the second highest total for a mandate of four years) and Joe Biden (213 so far, third total).
The record for federal judge appointments in a single four-year term belongs to Democrat Jimmy Carter (262, between January 1977 and January 1981).
For the man who will move into the Oval Office next January, the opportunity to change the ideological balance of the highest level of the judicial system also appears limited.
Three justices of the American Supreme Court are in their seventies and considered most likely to retire, depending on the outcome of the presidential election: the conservatives Clarence Thomas (76 years old) and Samuel Alito (74 years old), and the liberal Sonia Sotomayor (70 years old).
The next tenant of the White House's room for maneuver with regard to the appointment of judges could be further hampered or favored by the composition of the Senate, 33 of whose 100 seats are also at stake on November 5. The upper house of Congress is responsible for confirming the appointment of judges designated by the American president. The Democrats could lose their narrow majority (51-49).
Still, the weight of federal judges nationally is not just a question of quantity. Some judges may become more influential than others, because of the court they preside over or their philosophy.
Donald Trump and then Joe Biden both learned it the hard way: these judges can make decisions capable of hindering policies desired by the White House.
“BOLD AND FEARLESS”
According to Jake Faleschini, director of the judicial program for the progressive group Alliance For Justice Action Campaign (AFJAC), a second term for Donald Trump would offer the latter, even with fewer vacancies, the possibility of filling the appeals courts with magistrates that Faleschini calls “hyper-extremists” granting promotions to judges he appointed during his first term.
Jake Faleschini mentioned District Judge Aileen Cannon in Florida, who dismissed a complaint against Donald Trump in the case of classified documents taken when his term ends in 2021, and District Judge Matthew Kacsmaryk in Texas, which suspended approval of the abortion pill Mifepristone – a decision overturned last June by the US Supreme Court.
Mike Davis, a Donald Trump ally and founder of the conservative group Article III Project, focused on justice reform, described Aileen Cannon as an example of the style of “bold and fearless” judges he wants Trump to appoint in case second presidential term.
A senior Trump campaign adviser said in a statement that the Republican candidate has appointed “constitutionalist judges who interpret the law as it is written” during his term. “He will do the same when the voters bring him back to the White House,” added Brian Hughes.
No comment was obtained from the Harris campaign.
Jake Faleschini said he hopes Kamala Harris imitates Joe Biden by “starting her term with the same attention to demographics and professional diversity” among judges. The Democratic president has appointed mostly women and people from diverse backgrounds.
Mike Davis said a Harris administration would “turn trial courts into judicial activists” with a desire to create a “leftist” system. “The next president will complete, in one way or another, the transformation of justice,” he added.
(Nate Raymond; French version by Jean Terzian, edited by Kate Entringer)
