by Jorge Gomez • 4 minutes
On Nov. 5, Americans from coast-to-coast chose to return Former President Donald Trump to the White House. A power shift also occurred in the U.S. Senate. This week’s election results are expected to have a big impact on the Supreme Court and the appointment of federal judges.
First Liberty President, CEO & Chief Counsel Kelly Shackelford discusses how the forthcoming Trump administration could impact religious freedom by nominating originalist judges. Kelly also discusses what a Republican majority in the Senate means for court “reform” proposals and judicial confirmations.
Watch below:
The Supreme Court
President-elect Trump has said he will nominate judges who uphold the original text and plain meaning of the Constitution.
“As President, I will once again appoint rock-solid conservative judges in the mold of Justice Antonin Scalia and the great Clarence Thomas, who’s doing a phenomenal job,” Trump said during a speech at the National Religious Broadcasters Convention.
The Supreme Court is one of the most consequential institutions in the nation. Opinions issued by the justices have a deep and lasting impact on the lives of all Americans. Often, the Supreme Court is the last line of defense that protects many Americans whose religious freedom has been attacked. It’s their final hope to have their rights vindicated and liberties restored.
Over the past eight years, the U.S. Supreme Court has issued several opinions protecting religious liberty, free speech and life. These results were dramatically affected by the composition of the Court, especially by the three justices that President-elect Trump nominated during his first term in office.
It’s possible that Trump could nominate two more justices to the Supreme Court. If Trump were to fill at least two Supreme Court vacancies, he would have the most appointments by any president since Franklin D. Roosevelt, who was able to secure five appointees to the high court.
“Two of the most conservative Supreme Court justices, Clarence Thomas and Samuel Alito, may face calls to step down to allow younger conservative judges to take over during the second Trump presidency,” Newsweek reports.
“Thomas is 76 and Alito is 74,” said New York University law professor Stephen Gillers. “If Trump wins and Republicans control the Senate, there will be great pressure on Thomas and Alito to retire in the next two years so they can be replaced with nominees in their 40s, who can serve for 30-40 more years.”
“I would bet the farm that both Alito and Thomas will step down in the next year or two, and Donald Trump will get to appoint their replacement,” said John P. Collins Jr., a law professor at George Washington University.
Second Trump Term Opens Door to More Conservative Judges
A second Trump administration also has an opportunity to impact the lower federal courts. A Republican majority in the U.S. Senate should, in theory, make it easier to get his judicial picks confirmed.
“Given his second term and the sizable majority within the Senate, they’re going to fill those seats, and they’re going to do it quickly,” said Casey Burgat, director of the legislative affairs program at George Washington University’s Graduate School of Political Management.
Trump made a lasting impact on the federal judiciary during his first term. Similar to his Supreme Court appointments, Trump’s picks for the lower courts included many judges who were originalists and pro-religious freedom, and who are now the federal bench for life. Many of them donated their time as volunteer attorneys in First Liberty cases.
The first Trump administration saw more than 230 judges confirmed. Those included more than 50 judges appointed to the federal courts of appeals and over 170 to the district courts.
These numbers are vitally important in the legal fight for religious freedom. Less than 1% of all cases ever make it to the U.S. Supreme Court. That means more than 99% of all cases are resolved at district courts and courts of appeal.
Upon entering office, Trump will have a little more than 40 federal courts seats to fill, which is the fewest number of judicial vacancies in more than three decades.
The number of vacancies, however, could jump much higher. According to Reuters, there are more than 240 judges eligible to take senior status, a type of semi-retirement in which a judge may continue to hear cases, but their judicial seat is open and can be filled by the sitting president.
Thomas Jipping at the Heritage Foundation expects the number of vacancies to change once a new administration takes over on January 20. “In very short order, the number of vacancies available to be filled will increase, possibly quite significantly,” said Jipping.
Over the past four years, the Biden administration has put forth dozens of radical and controversial judicial nominees, many of whom have a dismal record on religious freedom. First Liberty has consistently warned that they could be hostile to people of faith, religious groups and unconstitutionally advance their own policy agendas from the federal bench.
The second Trump administration can reverse the alarming wave of radical nominees seen under his predecessor. Based on his prior record and campaign promises, there’s hope that Trump will remain committed to appointing judges who will rule according to principle and not politics.
As a new administration and Senate prepares to take over, First Liberty will continue evaluating the record of judicial nominees and providing the facts on which ones are best qualified to serve on the federal bench.
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