President Trump’s Judicial Opportunity and Conundrum

The Opportunity

Everybody knows that President Trump will nominate someone to fill the seat of the late US Supreme Court Justice Antonin Scalia. By all accounts, the Supreme Court vacancy was decisive in electing Mr. Trump president.

On the other hand, relatively few people are aware that President Trump has 114 vacant Federal judgeships to fill as of his inauguration with an additional 14 Federal judges already having announced that they will be retiring or assuming “senior status” thereby creating additional vacancies on the Federal courts. 128 vacancies out of 890 is 14% of the Federal judiciary. Rarely has a President had so many vacancies to fill on his first day of office.

Since it is the Senate which confirms nominees to the Federal courts and the Republicans are expected to retain control of the Senate through President Trump’s first term, the number of vacancies he will have the opportunity to fill will undoubtedly increase.

Not only is the Federal judiciary a left-leaning judiciary, it is a judiciary comprised of old men and women. For example, one out of every five active judges on the Federal appellate courts was 70 years of age or older last year.

By the end of President Trump’s first term, 70 currently active Federal appellate judges will be 70 years of age or older, or 39%. By the end of his second term, 107 of the currently active judges will be 70 years of age or older, or 60%. 61 will be 75 years of age or older. Click here for a list of active Federal circuit judges and their ages. Click here for a list of active Federal district court judges and their ages.

The US Supreme Court justices have the final word on the Federal Constitution and Federal law and so there is no doubt as to their importance. However, the Supreme Court rarely hears cases. Most cases reach the end of the road in the various Federal appellate courts.

The Congress can increase the number of authorized judgeships giving President Trump an even greater impact on the Federal judiciary not seen since the early days of this Republic. There are many things Congress can do which I may write about in future articles.

The Conundrum

The conundrum is where is President Trump going to find qualified people to fill these vacancies? They don’t exist.

The late Justice Scalia was a temporal anomaly among judges. We will not see the likes of him again.

In these past six years I have studied over 3,000 appellate decisions (and read many more) dealing with: the Second Amendment, the Fourth Amendment, the Fourteenth Amendment and related equal protection and due process clauses of the Federal Constitution.

The courts have done much evil to the Bill of Rights in particular and the Constitution as a whole. Why?

The answer partly lies in the paradox that the greater the advances in technology, the dumber humans become.

This year marks the 40th anniversary of my writing my first computer program. Given that the only way the college could afford the million dollar computer was to sell processing time on the computer to the local aerospace companies and the richest of corporations, our programs were given the lowest of priorities. It could take ten minutes or three hours for our programs to run.

That was a severe time penalty to pay to run a program which was faulty. The solution was not to write faulty programs in the first place which meant that one went over the logic of his program over and over, and one double and triple checked his programs for typographical errors before submitting them to be run by the mainframe computer.

Similarly, the law classes I took did not have the technology we have today. It takes just seconds for me to query an online database of published decisions for cases which support my legal arguments in my California Open Carry lawsuit.

Forty years ago, these online databases did not exist. One had to dig through a mountain of books with pen and legal pad at one’s side. One would write down a relevant decision and the cases it decided and then go to the bookshelves and look up those citations to see where they lead. Sometimes they would lead to the discovery that the case you had initially relied upon was overturned. This took hours and days. Today it can be accomplished by a few clicks of a mouse.

Despite all of these technological advances, lawyers and judges today are morons likely because they and their clerks (who write most of their decisions) don’t put the effort into making sure they are correct in their decisions. There is no penalty for them if they get it wrong.

Worse, these morons form associations like The Federalist Society which attracts these morons like flies.

It is The Federalist Society and its members and their kind who are whispering in the ear of President Trump. Not to mention the so called gun-rights groups like the National Rifle Association and Second Amendment Foundation which tell their gullible members and the equally gullible members of the public that they support the Second Amendment while at the same time waging war against the Second Amendment in the courts and in the back alleys of Congress and state legislatures.

President Trump has also stated certain positions which he expects his nominees to support. A major obstacle is that he has stated positions which no nominee who believes he is bound by the Federal Constitution can agree with.

This leaves judicial nominees who believe they can make things up as they go along or, in the alternative, for President Trump to drop some of his positions.

If the Constitution means what a judge personally thinks it should mean then the Constitution becomes a meaningless document.

President Trump has said that he would announce his nominee to fill the vacancy created by the death of Justice Scalia within two weeks of his taking office.

It will be interesting to see who that nominee is and what his court decisions have said and what are the positions he has taken in public.

Charles Nichols
President of California Right To Carry