Conservatives Slowly Turning Federal Courts

U.S. Circuit Court vacancies lowest since 1984

Nearly three years into the Trump presidency, the advance of conservative-leaning judges to the federal bench has been swift, with nearly 90% of the president’s nominees being confirmed, according to data from the Heritage Foundation.

This fall, as judicial vacancies on federal appeals courts are at the lowest level since the end of Ronald Reagan’s first term, the Senate has the chance to turn historically liberal federal circuit courts in the West and the Northeast in a more conservative direction.

The U.S. 9th Circuit Court of Appeals, which covers California, Oregon, Washington, Hawaii, Montana, Idaho and Arizona, has 29 judges, nine of which have been confirmed under President Trump. While liberal appointees still hold 16 seats, the balance of power has trended conservative, with a new nominee, Danielle J. Hunsaker, a county judge in Oregon, facing a likely confirmation this fall that could give conservatives 13 seats.

“Even without a circuit flip,” writes Jorge Gomez of First Liberty Institute, “the president’s nominees still have an impact, since most cases are decided by a randomly selected panel of three judges. Additional conservative judges could also help moderate opinions from liberal majorities, as well as write dissents that may prompt review from the U.S. Supreme Court.”

One pending case that could be affected is that of ousted high school football coach Joe Kennedy, a Marine veteran who lost his job in Bremerton, Washington, for kneeling in a silent prayer of thanksgiving on the 50-yard-line after games. A three-judge panel of the 9th Circuit ruled against Kennedy, who is represented by First Liberty attorneys. His case could come up again in that same appellate court; it is currently awaiting a second hearing in the same U.S. district court in Washington that ruled against him in 2016.

Meanwhile in the Northeast, the U.S. 2nd Circuit Court of Appeals currently has a 6-5 liberal majority but has two vacancies that could be filled this fall by conservative judges. If the Senate confirms the president’s nominees, it would turn to a 7-6 conservative majority. Thus far, one judge has been nominated: William Nardini, a federal criminal attorney for the District of Connecticut who has been praised for his commitment to “constitutionalist jurisprudence.”

First Liberty is litigating a case in federal district court that could end up in the 2nd Circuit Court of Appeals. City officials in Airmont, New York, have blocked an Orthodox Jewish community from hosting religious gatherings in their private homes.

If the district court rules for the city, an appeal to a new conservative majority in the 2nd Circuit could be “profound,” First Liberty says.

The Texas-based religious liberty firm says the influence of conservative court appointees was seen most recently on the U.S. 8th Circuit Court of Appeals, where Judge David Stras, one of four Trump nominees to that court, was a key vote on a three-judge panel that upheld the religious liberty rights of two Christian videographers in Minnesota.