It’s striking that the Trump administration and the US Senate have cooperated to confirm a record 41 judges to the US Circuit Courts of Appeals, beating the Nixon Administration, which logged 25 confirmations by its third year.
This is important because the 13 appeals courts have the final say in all but the approximately 70 cases the Supreme Court decides each year.
First Liberty Institute, a law firm dedicated to defending religious liberty, applauds the opportunity to flip some of these appeals courts. A court flips when it moves from having a majority of liberal-appointed judges to having a majority of conservative-appointed judges.
In an article entitled “More Flips in the Future?” First Liberty’s senior writer Jorge Gomez explains that flips are important because, when an appeals court chooses a three-judge panel to decide cases, “if the ratio of conservative to liberal-appointed judges is closer to 50-50, then there’s a higher probability that a conservative judge will hear and rule on cases according to the original text of the Constitution and the First Amendment.”
He reports that the US Court of Appeals for the Third Circuit, covering Delaware, New Jersey, and Pennsylvania already flipped earlier this year.
The Eleventh Circuit, which covers Alabama, Florida, and Georgia, is only one vacancy away from a flip, with one liberal-appointed judge eligible for retirement and another getting close.
There are four liberal-appointed judges currently eligible to retire on the New York-based Second Circuit Court, which is also only one vacancy away from a flip.
And, amazingly, the balance is ripe for change on the notoriously left-leaning Ninth Circuit where 8 liberal-appointed judges are eligible to retire.
First Liberty’s President Kelly Shackelford explains that a federal judge is eligible to retire at 65 at full salary for the rest of their life — a pretty good incentive to step back or move on, perhaps into a law practice.
Our courts could soon resume their proper, less activist role.