Live look at the Federalist Society eyeing the Eleventh Circuit (image via Getty)
For many lawyers and court watchers out there, talk about “flipping” circuits is misguided. There aren’t “Republican” judges or “Democratic” judges, there are just judges and you can’t really tell how a court is going to rule based on the party of the President who nominated the judges.
The people who say this are wrong. No, you can’t tell in every case, because thankfully the circuits still decide most cases on a randomized panel of judges. And sure, when blue slips were a thing, the Senators from each state had a lot to do with the partisan rabidness of the circuit judges who ended up getting nominations.
But blue slips are dead. Republicans killed them. The Trump administration has done nothing but nominate arch-conservative, FedSoc approved judges since they took office, and those judges come with a political agenda. When they can link up with judges nominated by previous Republican presidents, they can produce reliably conservative outcomes. If Democrats ever get back in power, they’d be wise to do the same exact thing.
Trump has already “flipped” the Third Circuit. He’s made serious inroads on other circuits. Now, he’s posed to fully flip the Eleventh Circuit. A giddy Ed Whelan took time out of his search for the real attempted rapist to explain this in the National Review:
Eleventh Circuit judge Stanley Marcus has announced that he will take senior status on March 2, 2020, or upon confirmation of his successor (whichever comes first). Marcus was appointed to his seat by President Clinton in 1997.
Counting active judges by the party of the appointing president is an admittedly crude and imperfect measure of the ideological makeup of a federal appellate court. (Marcus, who was appointed to the federal district court by President Reagan in 1985, was not viewed as a liberal.) With that large caveat, I’ll note that the Eleventh Circuit is currently divided 6-6 between appointees of Republican presidents and appointees of Democratic presidents. So when President Trump fills Marcus’s seat, the Eleventh Circuit will flip to a 7-5 majority of Republican appointees. At the outset of the Trump administration, it had an 8-3 Democratic majority (with one vacancy). So that’s an impressive swing.
One administration, not even in power for three years yet, has flipped the federal circuit for Florida, Georgia, and Alabama — three places where nonwhites historically have a difficult time securing things like voting rights and equal treatment under the law — from 8-3 Democratic to 7-5 Republican, with a majority of those Republicans being Trump judges.
If Democrats can’t explain to voters the importance of the federal courts, they will deserve everything these judges are about to do to keep the South unwinnable for nonwhites.
New Vacancy Sets Up Eleventh Circuit Flip [National Review]
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.