Coincidentally sitting next to a federal judge on a flight, I discovered an almost incalculable truth during our conversation.
This article is about how the Democrats and the retiring federal judiciary unintentionally made the biggest political spoils mistake in American history.
In 2016, the presidential election was coming to the end, with Hillary Clinton predicted to win by up to a 93% margin by all of antiquated, old-school media giants such as the New York Times just days before the election.
With this in mind, there were dozens, if not hundreds, of judges who were appointed during the last 30 years considering retirement so that the president of their choice could replace them.
In the federal judiciary, there are U.S. District Judges, there are Circuit Judges (Courts of Appeal) and then there is the Scotus, the Supreme Court. There are roughly about 700 fully active U.S. district judges and roughly about 179 active judges in the Courts of Appeal around the United States. These esteemed judges are all appointed for life under Article III of the Constitution. So they can stay and work for the rest of their life, take part-time status after a number of years, or they can retire with a full pension.
However, many judges during the Obama administration refused to retire during Obama’s term because they were hoping Hillary Clinton would become president right after President Barack Obama had served his eight years. Thus, if any judge retired in the summer or fall of 2016, they would have left an open spot for the next president to appoint.
The presumed winner by the New York Times was Hillary Clinton at a 90%-plus chance of victory, with Donald Trump considered the big underdog in the final days up to the 2016 presidential election.
Trump won 30 states to Hillary Clinton’s 20 states. Even though Hillary Clinton won the majority of the popular vote in the “Republican ignored” states of California and New York, it wasn’t enough to win the Electoral College. Thus, Trump became one of the biggest underdog winners in our lifetime.
What nobody expected is that Trump would be able to appoint a massive number of open federal judgeship spots. To do so, Trump would need a friendly U.S. Senate by another act of providence.
Senator Mitch McConnell picked up a majority in the Senate and 2016 and gained a few more seats in 2018 and has been able to push through senate confirmations on all federal judges with relative ease.
The Senate Judiciary Committee reviews the nominations, and they are approved and sent to the Senate floor for a full vote. With the Democrats having used the nuclear option during the Obama administration, this opened the door for Senator McConnell and the Republicans to approve any federal judge that they want with a simple majority in the Senate provided they are qualified.
As of April 2019, the United States Senate has confirmed 93 Article III judges that have been nominated by Trump, including two Associate Justices of the Supreme Court of the United States, 37 judges for the United States Courts of Appeals, along with 54 judges for the United States District Courts. There are currently 64 nominations to Article III courts awaiting Senate action, including five for the Courts of Appeals, 57 for the District Courts, and two for the Court of International Trade.
As for Article I courts, as of March 2019, the Senate has confirmed seven judges nominated by Trump, including two for the United States Tax Court, four for the United States Court of Appeals for Veterans Claims, and one for the United States Court of Appeals for the Armed Forces.
There are currently nine nominations to Article I courts awaiting Senate action, including four for the United States Court of Federal Claims, four for the Tax Court, and one for the United States Court of Military Commission Review.
If you look at the numbers, it is astounding. Trump may be able to appoint and confirm well over 155-200 lifetime Judges in just 3-4 years. This means that Trump may appoint about 20% to 30% of the entire number of active judges keeping in mind that there are numerous
Senior Judges who work a part-time docket along with over 500 U.S. magistrate Judges of which will also be affected by the Trump tenure as the local U.S. District judges may pick these judges for a term of years.
So the moral of the story is that Obama was intentionally disrespected and cheated out of dozens, if not more than 100, U.S. Federal Judicial appointments by losing the opportunity to replace them with his choices. The irony is that this disrespect came from within the party of the Democrats.
The retiring federal judges, in all due respect, probably had the intention of leaving their open spot to Hillary Clinton because they may have been originally appointed by Bill Clinton in the first place.
However, with this colossal mistake in judgment, the large number of Democrat Party-approved judges who decided to retire in the fall of 2016 created one of the gigantic political mishaps in our nation’s history.
Even today, many political commentators are saying that Trump alone, just in four years, will have the opportunity to change the entire philosophical dynamic of the federal courts into a more conservative, or Constitutionalist, mindset which affects the majority of the judges on the district court level, the court of appeals level and even the United States Supreme Court by Trump’s recent addition of two of the nine judgesIn essence, the majority of all of these courts will lean a bit to the Constitutionalist mindset or a “law and order” leaning which has been a totally unexpected outcome of Trump’s unprecedented landslide win.
George Mentz JD MBA CWM Chartered Wealth Manager ® is a licensed attorney and CEO of GAFM ® global education, which is an ISO 29990 Certified professional development company operating in over 50 nations. Mentz is an award winning author and advisory board member to several companies around the world in education, charities, and crypto currency.
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