by Scott SternbergFollowing the death of U.S. Supreme Court Justice Antonin Scalia on February 13, 2016, then-President Barack Obama nominated Judge Merrick Garland to take Scalia’s seat. In response, the Republican Senate leadership refused to hold a vote on Garland’s nomination. Justice Scalia’s seat was left effectively in limbo until President Trump’s victory, and Trump nominated Judge Neil Gorsuch shortly after taking office.
The slim Republican majority in the Senate lacked the necessary sixty votes to end debate on the Gorsuch nomination. In the past, both parties had threatened—and the Democrats had actually invoked—the “nuclear option,” lowering the filibuster threshold from sixty votes to a simple fifty-one-vote majority. On April 6, 2017, the Senate approved the change. Four days later, Gorsuch was sworn in as the 113th justice in the history of the Supreme Court.
So how did we get here? And why the fuss about judging judges? The answers can be found, predictably, in the Constitution.
The Constitution creates the U.S. Supreme Court and vests Congress with the ability to establish lower federal courts with limited jurisdiction over certain types of matters. Article II, Section 2 provides the president with the power to nominate, and then, “by and with the advice and consent of the Senate,” appoint judges. There are nine Supreme Court justices, about 179 judges on the thirteen United States courts of appeal, and approximately 677 judges in the nearly one hundred federal district courts throughout the land. Each district court has an appointed U.S. Attorney who enforces federal law in the district.
While the president is vested with the power of nomination, the “advice and consent” traditionally comes through the Senate’s vetting of judges and an up-or-down vote on the nominee. After “advice and consent,” the president grants the appointment to the nominee.
In 2013 the Democratic-controlled Senate invoked the nuclear option and effectively crossed the Rubicon, arguing that Republicans were holding up President Obama’s nominees to the cabinet and lower courts. This move left the door open for the Republicans to make the same move when they regained the majority. After all, the Constitution is silent about most everything but “advice and consent.” Accordingly, in the span of just four years, the makeup of “advice and consent” has changed significantly.
All of the appointed federal judicial positions are highly coveted—and potential political flashpoints no matter their location. The U.S. Fifth Circuit Court of Appeals—which hears appeals from Louisiana, Texas and Mississippi Federal Courts, is headquartered in New Orleans. Louisiana has three federal district courts: the New Orleans-based Eastern District of Louisiana, the Middle District of Louisiana, based in Baton Rouge, and the Western District, which encompasses Lafayette, Lake Charles, Monroe, Alexandria, and Shreveport. More than a handful of federal judicial appointments remain open on the various Louisiana federal courts. In February 2016, President Obama nominated federal public defender Claude Kelly to an open seat on the Eastern District of Louisiana, and U.S. Attorney Stephanie Finley to an open judgeship on the Western District of Louisiana. Neither nomination progressed, however, as the Republicans had wrested control of the Senate from the Democrats during the 2014 elections. In effect, the appointments could not be made because the Senate refused to give its “advice and consent.” Those nominations expired with the end of the 114th Congress.
Trump’s nominees for these and other federal judicial posts appear likely to receive the interview, vetting, and public hearings involved in “advice and consent” so long as the Republicans hold the Senate. The coveted position of federal judge is one held for life “during good Behaviour,” per Article III, Section 1 of the Constitution. Good behavior is relative—only fifteen federal judges in the history of the republic have been impeached and only eight permanently removed from office. Notably, the most recent removal—for alleged bribery and perjury—was New Orleans Federal Judge Thomas G. Porteous, Jr., in 2010.
In Louisiana, of course, we elect almost all of our judges. The Louisiana Supreme Court has seven justices elected for ten-year terms. The five courts of appeal have various numbers of judges elected for ten-year terms. There are 42 District Courts, whose judges serve for six-year terms, along with innumerable city, family, municipal and mayor’s courts throughout our state. The positions are also highly coveted, and are also held with “advice and consent” of a different body—the voters.