The peaceful transition of power is a point of pride in American political history. Rather than a series of militarist leaders vying for control, one ousting another from power with the force of a coup, we vote. And—hypothetically—the people’s popular voice is respected.
This past election year was a trying one for most Americans. The candidate’s ideologies seemed too polar to reconcile on any common ground. After the turbulent months of the primaries, the field was narrowed to a Republican and a Democratic nominee who were pegged by many to be the least likeable presidential candidates in American history.
The debates were fiery and often painful. After unapologetic, politically incorrect soundbites from Donald Trump, and publicly insufficient FBI evidence to nail any legal malfeasance to Hillary Clinton, voters were heavily divided into their respective camps.
The election’s fate—according to many media sources—would be a Clinton victory. It had to be, they said. Trump could never pull it off. And then millions of Americans watched on the night of November 8th as he clinched the electoral votes he needed for a win, beating out Hillary Clinton by single-digit millions.
Many Democrats didn’t see this coming. But it could be argued that Senate Republicans, in fact, did.
Back in February of 2016, after the death of Supreme Court Justice Antonin Scalia, Senate Majority Leader Mitch McConnell stated that he would not allow any Supreme Court nomination from President Obama to go through the senate. The President had nominated Merrick Garland, considered by many to be an ideological moderate. And McConnell’s boldness in quickly announcing a blocking of the Supreme Court successor may have set a dangerous precedent—if McConnell blocked a nomination from a Democratic president, what is to stop Democrats from following suit under a Republican administration?
After languishing for 10 months, the nomination of Justice Merrick Garland expired yesterday at noon, when the 114th Congress formally adjourned.
When President Elect Trump takes office in January, he is comes into a rare number of federal court vacancies as well as the open seat in the Supreme Court. The opportunity for him to reshape the judicial landscape is ripe.
On January 20th, 2017, President Obama will likely pass 103 judicial vacancies to Trump—that’s almost twice as many as Obama received eight years ago. Part of this comes from the Republican action—or rather, inaction—in deliberately blocking as many of Obama’s court picks as they could after the Senate went to Republican control in 2015.
As the incoming Republican president begins to make those lifetime appointments, the decisions of the new justices may shift the course of American laws. Among the cases to be likely be heard: voter laws, anti-discrimination measures, immigration issues, gun control laws, and abortion restrictions.
In a post-election interview with 60 Minutes, Trump declared that his current views are staunchly anti-abortion—unlike his previously stated positions. He promised to appoint Supreme Court justices who would, if given the opportunity, overturn the momentous Roe v. Wade abortion decision.
In some ways, a view like that Trump’s is reflective of that of the electorate which put him in office. In red states, thanks to hundreds of new anti-abortion laws, abortion clinic numbers are diminishing. And in blue states as well, the pressure put on abortion providers has made the financial viability of such a business increasingly unachievable.
According to many, the moral trouble is to be found less in Trump’s hypothetical appointments, and far more in the Republican Senate’s multi-year refusal to uphold the nominations from their Democratic president.
White House spokesman Eric Schultz decried the legislative stalemate, stating, “Republican tactics have been shameful and will forever leave a stain on the United States Senate… Republican congressional dysfunction has now metastasized to the third branch of government, and that is not a legacy to be proud of.”
Conservative Voters Rallied by Empty SCOTUS Seat
Back at the Republican National Convention, Trump attempted to galvanize his voter base around the issue of replacing Scalia on the Supreme Court.
“The replacement of our beloved Justice Scalia will be a person of similar views, principles and judicial philosophies. Very important. This will be one of the most important issues decided by this election.”
The lower court vacancies were not on the top of Trump’s rallying cries during his time on the campaign trail. But aides stated that the reshaping of the federal judiciary has long been a priority of his and VP-Elect Mike Pence.
Some voters may be surprised to know that federal court involvement runs in the Trump family. His older sister, Maryanne Trump Barry, has served for years as a senior judge on the 3rd Circuit U.S. Court of Appeals. Her initial federal bench appointment came from President Ronald Reagan, and under the Clinton administration, she was elevated to the circuit court.
Barry is widely known for her relative ideological moderation. Her verdicts have toed the fence line between different political camps; Barry spoke out against women’s claims of sexual harassment, as well as struck down a law in New Jersey which banned late-term abortions, on the grounds of its unconstitutionality.
Trump’s cabinet picks have made recent headline, but the candidates he may choose for open bench seats are still a mystery. But not for long: McConnell’s alleged reticence in allowing new judges over the past few years is expected to be replaced by relative exuberance under the new, Republican-controlled administration.
Many courts around the US have a severe backlog of cases due to longstanding judicial vacancies. According to the nonpartisan Judicial Conference, there are currently 38 “judicial emergencies.” In Texas, for example, seven seats have sat empty for more than a full year.
According to the Washington Post, however, Obama shouldn’t feel too much lingering frustration over the idea that his picks for judicial power haven’t always made it to the bench. During his two terms as Presidents, the Senate confirmed more of his picks than it did for those of President Bush: 329 to 326.
As President elect Trump makes his transition into power, the already-highly-politicized judicial landscape may end up being reshaped to reflect the President’s viewpoints. As we must do for all political leadership, Americans must continue to be aware, to be vigilant in our protection of our beliefs and the rights of ourselves and our countrymen.
Michael Schmiege, a civil rights lawyers and criminal defense attorney based out of Chicago, expressed his hope that the empty bench positions won’t remain so for long. “The circuit court hears tens of thousands of cases each year. With empty judiciary positions, many cases can’t be heard. It’s in the best interest of the American public to ensure that circuit courts remain functional—the right to a speedy trial should not be taken lightly.”
Mister Schmiege has a earned a reputation for tirelessly defending the rights of the accused. His legal savvy and tenacity are second-to-none. If you have been accused of a crime, the law offices of Michael Schmiege can offer a confidential consultation. Know your rights and your options. Contact a top Chicago criminal defense attorney today.