THE POWER OF FEDERAL COURTS
Judges who become part of the federal judiciary hold immense power over the lives of Americans, hearing cases that affect religious freedom for generations. The Supreme Court takes about 70-80 cases annually, while federal courts of appeals handle about 35,000 cases per year. So while Supreme Court justice selections are especially important, circuit court and district court judges hear 99% of all federal appeals cases.
President Trump, along with the Republican-controlled Senate, has a prime opportunity to nominate judges who will uphold the Constitution. As with the nomination of Justice Gorsuch to the U.S. Supreme Court, First Liberty attorneys—religious liberty experts—have been analyzing the opinions of judicial candidates related to religious freedom.
FEDERAL COURTS BY THE NUMBERS
Currently, there are approximately 140 judicial vacancies in our federal courts. These include both judicial seats that are open at this time and. The federal judiciary includes:
- Circuit Courts (U.S. Court of Appeals)
- 12 Circuit Court of Appeals (179 judges)
- U.S. District Courts
- 94 District Courts (89 in the 50 states)
- 677 total judges
- Specialty Courts
- Federal Claims Court (16 judges)
- Court of International Trade (9 judges)
Circuit Courts shown are grouped by color. Orange dots signify circuit court judicial vacancies. Red dots indicate nominees. Gold dots signify nominees that have been confirmed.
Double click on circuits to see nominee list and bios. Note: Click on the DC icon to the right of the map for Washington, DC circuit court details.
Green dots signify district court judicial vacancies. Yellow dots indicate nominees. Blue dots signify nominees that have been confirmed. Double click on states to see names and bios. Note: Click on the DC icon to the right of the map for Washington, DC district court details.
HOW NOMINEES ARE CONFIRMED
The fair and timely confirmation of Justice Neil Gorsuch to the Supreme Court stands in stark contrast to the gridlock and obstruction imposed on President Trump’s nominees to the lower courts. Today, there are more judicial vacancies than when President Trump first took office— more than 140 and counting.
The Appointments Clause of the Constitution requires the President:
“Shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court, and all other [federal judges] which shall be established by Law.”
In addition to the Supreme Court, the President’s judicial appointments consist of nominees to Courts of Appeal and District Courts. While the Constitution requires all judicial nominees to be confirmed by the Senate, it does not specify the process.
The current confirmation process has developed over time to include numerous traditions, precedents, professional courtesies, and formal rules adopted by the Senate. Recently, however, one Senate practice has slowed the confirmation process: the “30-hour” rule. This practice, which is not mandated by the Constitution, has hindered the Senate from performing its “Advice and Consent” duty, which is mandated by the Constitution.
The 30-hour rule is a derivative of the more familiar filibuster process. In 2013, the Senate abolished the 60-vote threshold to cut off debate (to invoke cloture) on all nominations except those to the Supreme Court. However Senate rules still currently allow up to 30 hours of debate for a single nomination. At that pace it would take several years to debate nominees for the current judicial vacancies.
TAKE ACTION TO SPEED THE NOMINATION PROCESS
Senate Majority Leader Mitch McConnell (R-KY) should lead his caucus to implement a version of the reforms to the 30-hour post-cloture debate suggested by Senator James Lankford (R-OK). Under this reform, the Senate would interpret its own Rule XXII to clarify that the 30-hour requirement does not apply to nominations. Instead, the Senate Majority Leader should as a courtesy allow a short period for post-cloture debate, ideally two hours per nominee, but certainly not more than eight hours. With this reform, the Senate should be able to quickly confirm nominees to lifetime judgeships.