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Conservatives On The Courts


The Republican-controlled Senate has quickly been filling the federal bench with President Donald Trump's judicial nominees. The Senate confirmed his 15th Appeals Court nominee this past week. And that's a big number, considering that under President Obama, the Senate confirmed only two of his Appeals Court nominees in the last two years of his presidency. It's a strategy endorsed by the Federalist Society, an influential network of conservative lawyers.

Jonathan Adler is a member and also a professor of constitutional, administrative and environmental law at Case Western Reserve School of Law. Good morning, sir.

JONATHAN ADLER: Good morning.

GARCIA-NAVARRO: I mean, this is obviously something that's very important to conservatives in general. Why is it so important?

ADLER: Well, I think it's important because so many issues these days are decided in federal courts. And federal courts end up having a large influence on the way the law is interpreted, the way the law is enforced and on whether or not the political branches are able to implement various types of policies.

GARCIA-NAVARRO: So there were a lot of judicial vacancies when Trump took office - more than a hundred - and one reason was that the Republican-controlled Senate wasn't even considering Obama's picks. Let's not forget Supreme Court nominee Merrick Garland. So a lot of these vacancies are seen by Democrats as ill-gotten gains.

ADLER: There is, unfortunately, a very long and sordid history of Senates not confirming nominees of presidents of the other party. The number of vacancies Donald Trump had when he came to office is about the same as the number that Bill Clinton had when he assumed office, and it was for the same reasons.

GARCIA-NAVARRO: It's not only the philosophy, though, that is binding President Trump's nominees. Sixty-seven percent of President Trump's appellate court judges and 76 percent of his district court jurists are white males. In any profession, that would be a problem if that was who you were putting forward.

ADLER: The administration is prioritizing the judicial philosophy of nominees over concerns about gender or ethnic diversity, but this administration has not solely nominated white males and has nominated quite a few female and minority jurists who are quite exceptional.

GARCIA-NAVARRO: But there have been some that have not been exceptional. Late last year, three judicial nominees withdrew their names from consideration. One was unable to answer basic questions about the rules of evidence for trial as another had failed to disclose controversial blog posts that included one defending the early KKK. Are you satisfied that these nominees have had the proper vetting and experience?

ADLER: The administration has focused its efforts on appellate nominees. The nominees for the district courts are often the result of negotiations with Senate delegations. And sometimes, that results in district court nominees that have more varied experience, more varied qualifications than you would see for circuit court nominees. But it's worth noting in the Obama administration there were actually about 14 folks that were selected for nomination in consultation with Senate delegations who the American Bar Association rated as unqualified, and then they were withdrawn pre-emptively before being submitted to the Senate.

GARCIA-NAVARRO: So you don't consider it a problem?

ADLER: I think that there were a handful of nominees - over 100. There were three nominees to district courts that were the result of negotiation with senators that were not qualified or that had other problems, and they withdrew, which is how the system is supposed to work.

GARCIA-NAVARRO: But is the system actually working when you rightly point out that there seems to be escalating obstruction of actually getting people appointed when the opposite party is in power of the Senate?

ADLER: I think the escalating obstruction is a very serious problem. You know, I certainly - my own view is that it would be nice if both parties recognized that the president is the one who has the power to nominate. And if the Senate would promptly consider all judicial nominees put forward by a president, I think that in the long term would mean that the balance of the federal courts would reflect the results of presidential elections over time. And I think that would turn down the heat of some of our judicial confirmation fights. But I'm not optimistic we're going to have that kind of change.

GARCIA-NAVARRO: Jonathan Adler is a professor of constitutional, administrative and environmental law at Case Western Reserve School of Law. Thank you very much.

ADLER: Thank you. Transcript provided by NPR, Copyright NPR.