Everything former U.S. Senator Carl Levin (D-MI) warned against in 2013 has come to pass. Majority Republicans in the U.S. Senate have indeed changed their chamber’s rules to break a Democratic filibuster against the nomination by President Donald Trump of Neil Gorsuch. Gorsuch was confirmed by a simple majority, 54-45 with one absent Senator, this past Friday. He’ll be sworn in Monday (April 10).
The President can thank former Senate Majority Leader Harry Reid of (D-Nevada) for the opportunity to get all of Trump’s nominees confirmed, because Reid chose to employ the “nuclear option” back in 2013 when Democrats still controlled the Senate but were having trouble getting the 60 votes necessary to invoke “cloture” (cutting off filibusters) and force an up-or-down vote on confirming then-President Barack Obama’s judicial choices.
Carl Levin was one of the few Democratic solons to refuse to support Reid’s move, warning that it would eventually backfire and come back to haunt Democrats. Levin was correct, and much sooner than anyone suspected — Donald Trump shocked the world by being elected president last year, with both chambers of Congress controlled by his own Republican Party.
Now, Levin’s worst fears have been realized.
The GOP now has no motivation to change the Senate rules back to where they were before 2013. Instead, Republicans have expanded Reid’s handiwork to include the U.S. Supreme Court. Even before this year, Reid’s “nuclear option” was rendered useless because Republicans in 2014 regained control of the Senate, and Charles Grassley (R-Iowa), chairing the Judiciary Committee, slowed down the ability for Obama’s nominees to get a hearing. Invoking cloture became a non-factor. That’s the reason the new Republican president has so many vacancies to fill.
Trump launched his presidency three months ago with 108 federal judgeships to fill, and perhaps 200+ more by the end of this year. That may turn out to be the most for any president in history. By the end of 2018, Trump may already have filled more vacancies than any president since Jimmy Carter.
Now that he’s filled the Supreme Court vacancy, the 107 remaining openings that Trump can take aim at immediately translate into one in every eight (12.4%) federal judgeships at the circuit and district court levels, plus a few international jurists.
These 107 vacancies are the most vacancies for any new president since Bill Clinton in 1993, and most of Clinton’s appointments came as the result of the expansion of the federal judiciary by 85 positions with the passage of the Judicial Improvement Act in 1990. However, in 1991-92, when George H.W. Bush was still president, he couldn’t take advantage of the new statute because the Democrat-controlled U.S. Senate refused to confirm many of his nominees, including attorney Henry Saad (later a state appellate judge). That gave Clinton a lot of “holdover” vacancies from the Bush 41 era to fill, and in the first two years of his presidency he did so because Democrats still controlled the Senate. After that, it became more difficult for Clinton, because the GOP regained controll of the Senate in 1994 and held it for the remainder of Clinton’s presidency.
Michigan had one federal district court when it became a state in 1837. A second district was added in 1863, establishing an Eastern District and a Western District. Since 1866, Michigan has been part of the 6th Circuit Court of Appeals, also including Ohio, Kentucky and Tennessee.
Today, in Michigan’s Eastern District federal court there are 15 active judgeships. Currently, there is one vacancy. Obama managed to fill seven of the 15 slots during his presidency. George W. Bush appointed three judges, and Bill Clinton four.
One of the 15, Gerald Rosen — appointed by G.H.W. Bush in 1990 — stepped down as the Eastern District’s chief judge last year and went on senior status. In 2014, Rosen was appointed by federal bankruptcy judge Steven Rhodes to mediate between the various parties in the City of Detroit’s bankruptcy. It was Rosen who helped craft what has been called the “Grand Bargain” to avoid liquidation of any of the Detroit Institute of Art’s world-famous collection by enlisting financial support from private foundations to minimize municipal pension cuts. Rosen’s vacancy will be the first judgeship to be filled by President Trump.
Possibilities for the Rosen replacement might include current state Supreme Court Justices Brian Zahra or Joan Larsen, who was on Trump’s list of possible Supreme Court nominees that he announced last year.
In Michigan’s Western District federal court, there are only four judgeships. George W. Bush named three of those judges, Ronald Reagan one. However, one of those judges —Janet Neff — was appointed by Bush 43 as part of a “political deal” with U.S. Senate Democrats, including incumbent Debbie Stabenow (running for re-election in 2018) and then-Senator Carl Levin, who demanded confirmation of holdover Clinton nominees by the GOP-controlled Senate. Neff was one of those nominees. Another Western District judge, Robert Holmes Bell, is a Reagan appointee who assumed senior status at the end of January, thereby creating a vacancy for President Trump to fill what’s not included in the current list of 107 vacancies. Who might replace him? How about James Robert Redford, a former circuit judge and Republican Party nominee for the state Supreme bench as well as Snyder’s chief legal counsel?
The 6th Circuit federal Court of Appeals is headquartered in Cincinnati, Ohio. District court cases from all four states in the district, including Michigan, can be appealed to the 6th Circuit, where confirmations have proved to be bitter partisan affairs.
Back in 1992, for instance, John Smietanka — a former Reagan-appointed U.S. Attorney for the Western District of Michigan — was nominated by George H.W. Bush to a judgeship on the 6th Circuit Court of Appeals. Smietanka was one of 10 George H.W. Bush appointments to various federal courts of appeals that year. That list also contained the name of John Roberts (later to become Chief Justice of the U.S. Supreme Court) for the Circuit Court of Appeals for the District of Columbia. However, all 10 G.H.W. Bush nominees were never confirmed by the Dem-controlled U.S. Senate, leaving those vacancies for Bill Clinton to fill in 1993 with Clinton’s party still in control of Senate.
Until 1992, the U.S. Senate had been operating under the so-called “Thurmond Rule,” named for GOP Sen. Strom Thurmond of South Carolina, who, when he was chairman of the Senate Judiciary Committee, announced that no judicial appointment would be acted upon after July 1 of a presidential year. President Clinton had two nominations to the 6th Circuit in his second term never acted on by the Republican-controlled Senate — Helene White and Kathleen Lewis. Later, President George W. Bush nominated Henry Saad, David McKeague and Susan Bieke Nielson, to the 6th Circuit, but Sen. Patrick Leahy (D-VT), then the Senate Judiciary Chairman, returned the favor by blocking those nominations.
In 2002, after Republicans regained control of the senate, President Bush 43 resubmitted the Saad, Nielson and McKeague nominations. He also nominated Richard Griffin, a Michigan appellate jurist and son of the former U.S. Senator and state Supreme Court Justice, Robert P. Griffin. What was the result? After filibusters by Democrats, Saad withdrew his nomination, but Griffin and McKeague were confirmed in 2005. That same year, Bush re-nominated Nielson for the 6th Circuit. She was confirmed, but she was terminally ill and died two months later. President Bush then nominated Helene White, a state appellate judge who had been previously nominated by Clinton, to succeed Nielson, and as part of another “deal” White was confirmed in 2008. Earlier that year, the Democrat-controlled Senate also confirmed Raymond Kethledge from Michigan to succeed James Ryan, a Republican appointee who took senior status.
What’s coming up in the 6th Circuit? Bob LaBrant, Michigan’s pre-eminent political judicial historian, pointed out early this year that Judge Danny Boggs, a Reagan appointee from Kentucky, had already announced he would go on senior status on February 28. Boggs did just that. This gives Trump an additional appointment not on the list on Inauguration Day. Also, let’s not forget that David McKeague from Michigan is also eligible to take senior status.
Two other nominations to look for in the new Trump administration are the U.S. Attorney positions in both the Eastern and Western Districts. In the Eastern enclave, Obama appointee Barbara McQuade served as the U.S. Attorney since 2010 before stepping down a month ago to teach at U-M law school. Her office successfully prosecuted both Detroit Mayor Kwame Kilpatrick and Supreme Court Justice Diane Hathaway as well as at least one high-profile terrorist. In the Western District, Patrick A. Miles, Jr., a Harvard Law School classmate of Barack Obama, was named by Obama to be U.S. Attorney after running unsuccessfully against incumbent U.S. Rep. Justin Amash (R-MI 3). He’s gone as well. Replacements for McQuade and Miles will require Senate confirmation. Whom might Trump appoint to replace them? Michigan Attorney General Bill Schuette’s chief deputy, Matthew Schneider, might be one possibility. And let’s not overlook state Supreme Court Justice Bob Young, who’s announced he’s retiring from the bench at the end of this month but is still only 65 years old.
Finally, keep in mind that 172 federal judges have already qualified to take senior status as of this past January. How many will? Some have already announced, but most have not. Add 172 to the 107 vacancies, and you have 279 vacancies that could be filled by Trump if all quit (this won’t happen). Plus, another 47 are eligible to take senior status by the end of the year.
What really should scare Democrats is that most of these 326 federal judgeships were Republican appointees who could decide to retire with senior status now that they know they have a Republican president to replace them. By the end of one term as president in 2020, Donald Trump could have the opportunity to replace more than half (50.3%) of all lifetime federal jurists if they all retire, die or take senior status.