Cohen Milstein’s Molly J. Bowen Authors Law360 Expert Analysis, “What a Changing Federal Bench Means for Securities Cases”

April 27, 2020

By Molly J. Bowen

A key measure of a president’s legacy is his or her impact on the federal judiciary. President Donald Trump’s tenure has been marked by a remarkably voluminous and rapid change to the federal bench. This change is likely to accelerate in advance of the 2020 elections.

On March 16, it was reported that Senate Majority Leader Mitch McConnell, R-Ky., is personally reaching out to veteran federal judges to encourage them to step down soon so the Senate has time to confirm a replacement in advance of the 2020 elections and potential change in the Senate majority.

The Trump administration’s success reshaping the federal judiciary can be seen most starkly at the U.S. Supreme Court. In April 2017, Justice Neil Gorsuch joined the court, replacing late Justice Antonin Scalia, and in October 2018, Justice Brett Kavanaugh joined, replacing retired Justice Anthony Kennedy.

But the federal courts of appeal — the final arbiter of all but the few disputes considered by the Supreme Court — have also seen dramatic change. Fifty judge nominees to the federal courts of appeals have been confirmed, making more than one-quarter of all active federal appellate judges Trump appointees.

Significantly, that has flipped three federal courts of appeals — previously, the majority of judges on the U.S. Court of Appeals for the Second Circuit, the U.S. Court of Appeals for the Third Circuit, and the U.S. Court of Appeals for the Eleventh Circuit were nominated by a Democratic president and now, the majority of judges on each circuit is the appointee of a Republican president. Additionally, 112 judges have been confirmed to the federal district courts during the Trump administration.

The complete Law360 Expert Analysis can be accessed here.