Guest Editorial
By Robert Romano | MAY 11, 2016
Hillary Clinton will increase Democrat composition of federal judiciary to 67 percent by end of first term
How many appointments will the next president make to the federal judiciary? And what might that mean for the American people's First and Second Amendment rights?
Since 1952, U.S. presidents have nominated and had confirmed an average of 163 federal judges, including 1.6 Supreme Court Justices, every 4 years.
The important factors are deaths and retirements. Meaning, a President Hillary Clinton may get to seat about 160 federal judges or so, including one or two Supreme Court Justices or maybe four.
Which would come atop the 462 judicial appointments already seated by Democrat presidents, including four Supreme Court Justices — out of the 853 currently seated federal judges according to data compiled by the Federal Judicial Center.
The current partisan composition of the federal courts including district and circuit courts of appeals 54 percent to 46 percent in favor of Democrats.
Now, of the 165 oldest judges currently on the courts born on or before 1946, 113 of them were appointed by Republicans. Meaning, if those 165 die or retire in pretty much that order — Democrats would yield a net gain of about 113 judges.
Meaning, a potential President Clinton might replace 53 Democrat judges and 113 Republican judges by 2020, bringing the number of judges appointed by Democrats to 575.
That would bring the partisan composition of federal courts to 67 percent Democrat. Two out of every three judges will have been appointed by Democrats, and who knows what might happen on the Supreme Court?
And that's just in her first four years in office.
That should be a sobering assessment even for the most ardent #NeverTrump whiner. Are they certifiably insane?
Contrast that with a Republican win in November by presumptive nominee Donald Trump, who some party members now suggest they cannot support. He might only get a net gain of 53 judges, bringing the Republican total to 445, or 52 percent of the total, since Trump would mostly be replacing Republican judges.
Going forward, if one assumes Clinton actually wins two terms, the Republican judicial outlook looks even bleaker. In her second term, if you take the next 176 oldest judges born on or before 1951, 101 of them were appointed by Republicans, too.
A second Clinton term might net another 101 judges for Democrats, bringing their federal judge total to 676 — or 79 percent of the total.
Just to keep balance, then, means Republicans really, really need the White House for about the next 8 years.
Now, the death and retirement rates will certainly vary, but the key point is that since 1952, the partisan composition of the federal judiciary has been somewhat balanced in accordance with the composition of the White House. It went from 8 years Republican (1953-1960) to 8 years Democrat (1961-1968) to 8 years Republican (1969-1976) to 4 years Democrat (1977-1980) to 12 years Republican (1981-1992) to 8 years Democrat (1993-2000) to 8 years Republican (2001-2008) to 8 years Democrat (2009-2016).
So, it tends to go back and forth. But throw more than two terms in a row for one side or the other, and the balance of the courts will shift dramatically almost overnight.
Which, if the only thing one cared about was ensuring that the judiciary not become overly partisan, then a Clinton presidency would be nothing short of a generational catastrophe.
Has #NeverTrump considered the true, judicial consequences of a Clinton presidency?
What does one suppose might happen to the Second Amendment individual right to keep and bear arms, upheld in the Heller 5-4 decision? Or the First Amendment right to say what you like during elections, upheld in the Citizens United 5-4 decision?
The answer is that with the Supreme Court's current composition at 4 to 4 with the death of Justice Antonin Scalia, the risk for the American people is that the First and Second Amendments might be summarily reinterpreted if Clinton wins. Throw in subsequent applications of those decisions at the district and circuit level with scores of new liberal judges, and who knows how bad it might get?
If Republicans cared about nothing else than who appoints judges to uphold a constitutional, limited government with strongly interpreted Bill of Rights protections, then they cannot allow Clinton to win under any circumstances. There is too much at stake.
We suspect cooler heads will prevail, and the madness of #NeverTrump will end shortly. No less so than because the very Constitution hangs in the balance, and Republicans — and the country as a whole — cannot afford to wait another four years for conservatives to begin restoring their ranks on the federal judiciary. Time's up.
Robert Romano is the senior editor of Americans for Limited Government.
