President Donald Trump's effort to reshape influential U.S. courts by stocking them with conservative judges faces at least one significant impediment: some of the courts best placed to thwart his agenda have liberal majorities that are likely to stay in place in the short-term.
Those courts, including an influential Washington appeals court and two appellate courts that ruled against Trump in cases involving his travel ban, all had an influx of fresh liberal blood under President Barack Obama.
"Trump is not going to be able to make any significant dents into the Democrats’ control of those three (appellate) circuits," said Arthur Hellman, a professor at the University of Pittsburgh School of Law.
After eight years in office, Obama was able to make enough appointments to leave a strong liberal imprint on the federal courts. When he left the White House in January, nine of the 13 federal appeals courts had a majority of Democratic-appointed judges.
The federal appeals courts, divided into 11 geographic regions plus two based in the District of Columbia, often have the final say in major legal disputes. The conservative-leaning U.S. Supreme Court, which now includes Trump appointee Neil Gorsuch, can overrule appeals court decisions, but hears only a small number of cases, which leaves lower court rulings in place most of the time.
The appeals courts can shape the interpretation of such issues as abortion, religious freedom, voting rights and race.
Appellate court judges serve lifetime terms, and so far Trump’s opportunities to appoint new ones have been mostly limited to courts that already lean conservative.
Among the courts conservatives would most like to shift are the San Francisco-based 9th U.S. Circuit Court of Appeals and the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals, both of which ruled against Trump in cases challenging the Republican president's executive orders temporarily banning travel to the United States by people from six predominantly Muslim countries. The Supreme Court partially revived the ban last month.
The ideological balance of those courts has provided some hope to Trump's legal opponents, including Democratic state attorneys general, who have already sued the administration over the travel ban and other issues.
Strategic attorneys general can likely chart a path through Democratic-leaning courts – making it harder on the Trump administration to pursue its agenda through executive action," said Sarah Binder, a scholar the nonpartisan Brookings Institution think tank. (Reuters)