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Title: Could Trump Deliver a Conservative Federal Judiciary?
Source:
Weekly Standard
URL Source: http://www.weeklystandard.com/could ... eral-judiciary/article/2009463
Published: Aug 29, 2017
Author: Terry Eastland
Post Date: 2017-08-30 08:18:06 by Tooconservative
Keywords: None
Views: 1488
Comments: 19
Democrats know the judicial map, yet what can they do to slow the Republicans down? It takes just 51 votes to confirm a judge, and there are 52 Republicans.* The Democrats are in the minority, and they no longer have the filibuster, a tool that they themselves did away with when they were in the majority in 2013. Trump and Senate Republicans would appear to be able to have their way in picking judges unless Democrats take the Senate in 2018, which most election analysts consider unlikely. The week after the 2016 elections, Russell Wheeler of the Brookings Institution explained the opportunity for Trump. The majority of judges taking senior status or retiring during Trump’s term will be Republican appointees, said Wheeler. Trump appointees thus will likely replace more Republican appointees than Democratic ones, but the president may still be able to create by 2020 modest Republican-appointee majorities among judges in full-time status. Trump inherited 96 vacancies on the district courts, a number Wheeler thinks will grow to 150 during his term, 110 of which will be filled by mid-summer of 2020, as judicial selection usually shuts down then in the runup to the presidential election. If Wheeler is right, Republican appointees to the district courts will number 339, 107 more than they did on Jan. 20, 2017, while Democratic appointees will number 292, 53 fewer than they did at the start of 2017. Some 138 seats will be vacant—96 of them created by exiting Democratic appointees. The more important lower courts are the appeals courts, which decide almost all cases, the Supreme Court taking only a very few for review. On Inauguration Day, Republican appointees numbered 72 and Democratic ones 91, and 16 seats were vacant. Wheeler thinks the numbers by mid-2020 could be 94 and 77, respectively, with 8 seats vacant. In January 2017 Democratic appointees had majorities on nine courts of appeals, and supermajorities—meaning twice as many or more—on five. Republican appointees had supermajorities on four. If Trump replaces all 48 of the Democratic appointees that are positioned to leave office and do so during Trump’s term, said Wheeler, “every court of appeals would become a Republican-appointee majority court.” That’s highly unlikely, in Wheeler estimation, but he is right to think that “some closely divided courts seem poised to shift from Democratic-appointee majorities to Republican appointee majorities and from narrow Republican majorities to more robust such majorities.” The Senate has confirmed three judges for the courts of appeals, and one for the district courts.About 30 nominees—eight for the courts of appeals and 22 for the district courts—are awaiting Senate action. There are now almost 140 open seats, 28 more than Trump inherited. Minority Democrats in the Senate aim to slow the confirmation process by practices that the majority Republicans should be able to control. The weight given to a senator’s objection to a nominee from the senator’s home-state is an issue—one that the chairman of the Judiciary Committee, Republican Charles Grassley, can decide. And there is the matter of the number of hours a nomination may be debated on the floor—it’s now the absurdly large amount of 30 hours, and Republican Senator James Lankford has proposed cutting it back to 8 hours, at the end of which there would be an up or down vote. What is ultimately at stake is the philosophical direction of the federal judiciary—whether, in broad terms, we select judges, and justices—who interpret the law or make it up. Someday we could be discussing Trump judges, just as we do now Reagan judges. Poster Comment: President Trump thinks the Gorsuch appointment to the Supreme Court is one of his biggest achievements of his presidency. Another major success may await him: the redirection of the lower federal courts, such that there will be more Republican than Democratic appointees, and thus a more conservative federal judiciary. 
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#1. To: Tooconservative (#0)
No, the question is whether we select judges who impose a Democrat political agenda or a Republican one. That's what's at stake.
Trump may have no legislative or foreign policy legacy. But he wouldn't be the first prez whose major legacy was judicial. All the GOP has to do is hold the Senate in 2018 where Dems are defending more states that Trump won than the GOP is defending states where Hitlery won. It's not a bad bet, as these things go. Trump's sister, Elizabeth, is no doubt pointing this out to him as would his feeble WH counsel and Jeff Sessions at DOJ.
The big question will be: will Trump continue to appoint pro-lifers? Will he use pro-life as a litmus test? If he does so, then he may actually install an anti-Roe majority on the court and his legacy could be that Roe is overturned.
It is unlikely if Trump doesn't get to make at least one more solid pro-life pick. More likely, he'll need two. The libs are terrified that Trump could get 2-3 more picks on the Court.
The above is why so many conservative Christians stayed with him even with all the warts during the campaign. As was mentioned above...It won't be demoncrats who torpedo his nominees...It will be RINOs.
A significant question in Roe is jurisdiction. Does the Federal government have proper delegated authority to decide the issue of abortion? Roe at 410 U.S. 152-53 vaguely states, [...] This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. More conservative justices might find that whether the supposed right to abortion be attributed to the 14th or 9th Amendment, that was but sprinkling legal pixie dust on the Constitution to justify a desired result. If Roe were to be overturned on the issue of jurisdiction, the Supreme Court could not decide the matter on the merits. Only by upholding a claim to federal jurisdiction on the question of abortion could the Court issue an opinion holding that all abortion is prohibited, and strike down all State laws to the contrary. According to SCOTUS in Roe, the right to abortion is here, Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The very same quoted by none other than Rand Paul as the way to undo Roe without SCOTUS or Constitutional Amendment.
They'll be found and vetted by the same clowns who created his current useless staff and cabinet.
I have not seen what Rand Paul said, but to overturn Roe, or any SCOTUS interpretation of the Constitution, would require another SCOTUS opinion overturning its prior opinion, or a constitutional amendment. The Legislature cannot overturn an interpretation of the Constitution. By overturning (not reversing on the merits) on the question of jurisdiction, SCOTUS would find that the Roe court was wrong to accept and decide the case, and should have remanded to the lower court with instructions to dismiss for want of jurisdiction. It would void the Roe ruling on the merits, and not replace it with another ruling on the merits. Essentially, deciding the question of abortion would be relegated to State authority. It could be proscribed in Texas and available on demand in California.
So we don't have to add new social programs. The Supreme court could do it. You sound smarter on this day than recently.
He could: Ginsburg and Breyer are old. That's two pick ups. Thomas is old too, and Trump could replace him. That would make a Supreme Court of 5 Trump justices. If he applies a pro-life litmus test, Roe could go. Roberts won't vote to overturn Roe. Alito is a cypher.
It used to be an issue. Republicans, to their credit, are brushing these objections aside.
Because she had already given birth? Rehnquist tried that. Didn't work.
My statement was prefaced with, "By overturning (not reversing on the merits) on the question of jurisdiction, ..." In revisiting, SCOTUS could find that abortion is a matter of State jurisdiction, and the case should not have been decided by SCOTUS. Roe having given birth (or not) was irrelevant. The lack of any evidence whatever that there was a first trimester plaintiff at the time the case was first filed is relevant to an opinion deciding first trimester (plus 2nd, 3rd) rights. There are grounds to revisit with a new case, jurisdiction being just one possibility.
Before Roe v Wade abortion WAS a matter of State jurisdiction. The U.S. Supreme Court didn't have to find anything. But they took the case and found a constitutional right to privacy hidden in the penumbra of an emanation and used the 14th amendment to apply that right to the states. Now, a future U.S. Supreme Court will have to find that there IS no right to privacy in the U.S. Constitution -- as least as it applies to abortion. A high bar.
Yes, a high bar, but that is true for overturning almost any preceding Supreme Court opinion. Brown v. Topeka Board of Education (1954) famously reversed Plessy v. Ferguson (1896), finding that seperate but equal was not equal. Overturning Roe would not necessarily requiring a finding that there is no right to privacy in the U.S. Constitution. It may find that any such right to privacy does not reach so far as was found in Roe. Roe at 153: The Court may find that "This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is" NOT "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." The Court may find that, "The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent," but the detriment to the woman is overridden by the detriment to the unborn child. While, "Specific and direct harm medically diagnosable even in early pregnancy may be involved," the Court may find personhood begins at conception, or earlier than some vague point near the end of the first trimester, and the direct harm to the little person outweighs the harm to the big person. While "Maternity, or additional offspring, may force upon the woman a distressful life and future," the Court may find that death to the small person forces unacceptable termination of a life and future. While "Mental and physical health may be taxed by child care," the life of the little guy or gal will definitely be taxed by death. While "There is also the distress, for all concerned, associated with the unwanted child," the Court may find there is greater distress caused to the child. While "there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it," the Court may find this is overridden by the problem caused to the child. While "the additional difficulties and continuing stigma of unwed motherhood may be involved," the Court may consider this claim an absurdity in a time with so many births out of wedlock. https://yaleglobal.yale.edu/content/out-wedlock-births-rise-worldwide Roe was a political decision, relying on the legal magic of substantive due process. That is an empty vessel into which the desired result is poured. If the Court wants to overturn Roe, it can find a way to do it.
You're outlining a case to make abortion illegal nationwide. I don't think that's necessary. All we need to do is go back to the way it was, leaving the abortion decision to the states. This is more a 10th amendment issue than the 9th -- the power to decide the abortion question was not delegated to the United States by the Constitution. Which was how the U.S. Supreme Court should have ruled in Roe v wade.
Hardly. This is more a 10th amendment issue than the 9th -- the power to decide the abortion question was not delegated to the United States by the Constitution. Which was how the U.S. Supreme Court should have ruled in Roe v wade. Finding "the power to decide the abortion question was not delegated to the United States by the Constitution," is finding that the Supreme Court, and all lower federal courts, lack jurisdiction to decide the case. As I stated at my #6: As I stated in my #9: Essentially, deciding the question of abortion would be relegated to State authority. It could be proscribed in Texas and available on demand in California. As I satated in my #14: In revisiting, SCOTUS could find that abortion is a matter of State jurisdiction, and the case should not have been decided by SCOTUS. It would be like alcohol. States could allow it, prohibit it, or regulate it as they choose. We have wet counties and dry counties. Let the people decide. What a concept. Unfortunately, conservatives will desire to kill abortion doctors in liberal states, and liberals will want to foment violence in conservative states. The people almost unanimously support U.S. Supreme Court jurisdiction, they just disagree on what one rule for all should be handed down. About half the people reject the abortion on demand rule. If the court were to reverse its ruling and find all abortion unlawful except when necessary to save the life of the mother, half the people would be unhappy with that too. Most people want to impose their will or morality on those states that disagree with them. They support an activist SCOTUS decision to impose their will upon all. Roe found, "Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks." As scientific opinion now considers viability at 22 weeks, Roe's viability finding is undermined. If Congress were to define, by statute, the start of personhood at conception or a specified early time, perhaps at heartbeat detection, that would also change federal jurisdiction. In hearing a new case, SCOTUS could reject the viability argument and adopt a personhood argument. Better yet, SCOTUS could find that the major Roe court mistake was its finding of jurisdiction.
That wasn't the question the court heard. The court heard, "Does a citizen have a right to privacy and does making abortion illegal violate that right? To that they answered 'yes' and 'yes'. THAT is the decision that must be overturned and, as I said, that's a high bar.
What is ultimately at stake is the philosophical direction of the federal judiciary—whether, in broad terms, we select judges, and justices—who interpret the law or make it up.
#2. To: Vicomte13 (#1)
(Edited)
#3. To: Tooconservative (#2)
#4. To: Vicomte13 (#3)
If he does so, then he may actually install an anti-Roe majority on the court and his legacy could be that Roe is overturned.
#5. To: Vicomte13 (#3)
The big question will be: will Trump continue to appoint pro-lifers? Will he use pro-life as a litmus test? If he does so, then he may actually install an anti-Roe majority on the court and his legacy could be that Roe is overturned.
#6. To: Vicomte13, Tooconservative, redleghunter (#3)
If he does so, then he may actually install an anti-Roe majority on the court and his legacy could be that Roe is overturned.
The Constitution does not explicitly mention any right of privacy.
Amendment XIV
#7. To: nolu chan (#6)
Amendment XIV Section 1.
#8. To: Tooconservative (#0)
#9. To: redleghunter (#7)
The very same quoted by none other than Rand Paul as the way to undo Roe without SCOTUS or Constitutional Amendment
#10. To: Vicomte13 (#3)
The big question will be: will Trump continue to appoint pro-lifers? Will he use pro-life as a litmus test? If he does so, then he may actually install an anti-Roe majority on the court and his legacy could be that Roe is overturned.
#11. To: Tooconservative (#4)
The libs are terrified that Trump could get 2-3 more picks on the Court.
#12. To: Tooconservative (#0)
The weight given to a senator’s objection to a nominee from the senator’s home-state is an issue
#13. To: nolu chan (#9)
SCOTUS would find that the Roe court was wrong to accept and decide the case, and should have remanded to the lower court with instructions to dismiss for want of jurisdiction.
#14. To: misterwhite (#13)
Because she had already given birth? Rehnquist tried that. Didn't work.
#15. To: nolu chan (#14)
In revisiting, SCOTUS could find that abortion is a matter of State jurisdiction, and the case should not have been decided by SCOTUS.
#16. To: misterwhite, A K A Stone (#15)
Now, a future U.S. Supreme Court will have to find that there IS no right to privacy in the U.S. Constitution -- as least as it applies to abortion. A high bar.
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
While the national average for the United States in 2014 is 40 percent, the proportions of births out of wedlock for whites are 29 percent; Hispanics, 53 percent; and blacks, 71 percent.
#17. To: nolu chan (#16)
#18. To: misterwhite (#17)
You're outlining a case to make abortion illegal nationwide. I don't think that's necessary.
All we need to do is go back to the way it was, leaving the abortion decision to the states.
A significant question in Roe is jurisdiction. Does the Federal government have proper delegated authority to decide the issue of abortion?
By overturning (not reversing on the merits) on the question of jurisdiction, SCOTUS would find that the Roe court was wrong to accept and decide the case, and should have remanded to the lower court with instructions to dismiss for want of jurisdiction. It would void the Roe ruling on the merits, and not replace it with another ruling on the merits.
My statement was prefaced with, "By overturning (not reversing on the merits) on the question of jurisdiction, ..."
#19. To: nolu chan (#18)
A significant question in Roe is jurisdiction. Does the Federal government have proper delegated authority to decide the issue of abortion?
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