Trial Magazine

One year out from the 2020 elections, the Trump administration continues to stack the federal courts with corporate lawyers, most of whom have never represented a worker, patient, or consumer. This judicial overhaul represents an unprecedented threat to our practices, our clients’ rights, and our civil justice system.

The U.S. Senate has confirmed 152 of President Trump’s judicial nominees—including two U.S. Supreme Court justices, 43 circuit court judges, and 105 district court judges—as of late September when this issue of Trial went to publication. The administration now aims to fill the remaining 97 district court vacancies. By the 2020 elections, the administration could end up appointing nearly one third of the federal judiciary.

This is why trial lawyers should be very concerned:

• The administration has replaced learned judges appointed by President George W. Bush and other presidents with pro-corporate judges who have no track record of supporting Seventh Amendment rights.
• Many of these appointees are relatively young and likely will be on the bench for decades.
• The American Bar Association has given “not qualified” ratings to seven of the president’s judicial picks—often candidates with little or no trial experience.

These pro-corporate judges threaten the foundation of our civil justice system. The anti-civil-justice Senate ­leadership is doing everything in its power to subvert our democracy. The confirmation process is now little more than a glorified rubber stamp, with the Senate leadership obliterating established procedures and norms to push through appointees at an extremely fast rate.

For example, with recent appellate court appointments, the leadership has swept aside the long-standing tradition of the “blue-slip rule.” Under this  rule, senators from the state where the judge is being appointed are given a blue piece of paper and signal support for the nominee by returning the paper to the Senate Judiciary Committee. A ­home-state senator can halt a lower court nominee’s confirmation by refusing to return the blue slip. By suspending this custom, the committee is filling vacancies without the consent of home-state senators.

In addition, the Senate leadership has pushed through a rule change that cuts debate time for district court vacancies from 30 hours to two hours to speed up the process, leading to more judges being confirmed.

AAJ is keeping a close eye on all of this. The association’s Committee on the Judiciary helps identify potential federal judicial candidates and evaluates the civil justice records of judicial ­nominees to determine whether AAJ should support or oppose nominees based on their records on access to justice.

To protect the right to trial by jury, it is imperative that we ready ourselves for the political fight ahead. I urge you all to once again commit to our shared mission. In the coming year, please contribute to AAJ PAC. AAJ continues to fight for your practices and the rights of your clients, but we couldn’t do it without you. Thank you so much for all that you already do.

Bruce H. Stern is a shareholder at Stark & Stark in Lawrenceville, N.J. He can be reached at bruce.stern@justice.org.