Forget Gorsuch: Trump’s lower court nomination may be more important

There has been considerable talk and speculation about President Trump’s next pick for the Supreme Court. With all the attention focused on the hearings over the president’s first nomination to the Supreme Court — Judge Neil Gorsuch — let alone all the other stories swirling around the Beltway, one might have missed the fact that the president has named his first nominee to a lower federal court.

Beneath the radar, the president nominated Judge Amul R. Thapar, now a federal district judge for the Eastern District of Kentucky, to a seat on the U.S. Court of Appeals for the Sixth Circuit. The nomination says something about Trump’s strategy for filling the numerous vacancies on the lower federal courts. And in the long run, it may have a larger impact than the nomination of Gorsuch.

Since it is Trump’s first nomination to the lower federal courts, the nomination reveals at least a little bit of what the president will look for to fill lower-court judicial vacancies. Thapar is on the list of names from which Trump said he would draw the nominee to replace the late Supreme Court Justice Antonin Scalia.

{mosads}While the president in the end decided to nominate Gorsuch for that vacancy, the fact remains that the names on that list were all vetted and approved of — as Trump repeated numerous times during the campaign — by the Heritage Foundation and the Federalist Society, two highly respected conservative/libertarian think-tank organizations. This suggests that Trump’s approach to the lower federal courts will be similar to his approach in filling the Supreme Court vacancy.

Beyond this, the selection shows a penchant for diversifying the federal bench. Thapar is Asian-American, his parents having immigrated to America from India. Indeed, when President George W. Bush named him a federal district judge, Thapar became the first Article III federal judge of South Asian descent.

The weight of the nomination of Thapar should not be understated. While public and media attention tends to focus on the Supreme Court (to the extent it focuses on courts at all), the lower federal courts resolve the vast majority of federal cases; few cases actually reach the Supreme Court.

Thus, lower court judges can, at least in some sense, have a far more pronounced impact than a Supreme Court justice. Moreover, as compared to other federal courts of appeals, many have observed the Sixth Circuit to have exhibited a high level of partisanship, and (perhaps not coincidentally) a relatively high reversal rate at the hands of the Supreme Court. (Unlike the majority of federal courts of appeals at this point, it retains a majority of judges appointed by Republican presidents.)

It will be interesting to see the extent to which Thapar, if confirmed, alters these trends.

Thapar’s appointment may also have implications for the Supreme Court itself, perhaps beyond even the appointment of Gorsuch to that court. As noted above, Thapar was on the short list of possible Supreme Court nominees. It is certainly possible that Trump means to appoint Thapar to the appellate court to get more of a sense of his judicial philosophy, much as President George H.W. Bush appointed New Hampshire Supreme Court Justice David Souter to the federal court of appeals in Boston before naming him

 to the Supreme Court.

And, to the extent that Trump has an opportunity to name a second Supreme Court justice, it would present the president with a far greater opportunity to remake the court than does the current vacancy. Commentators and court observers understand that the median justice — that is, the justice who in general is ideologically situated at the court’s center — has considerable power over the court’s output. This is because the median justice is usually the focal point for the court’s close 5-4 decisions.

For the past several terms, that median justice has been Anthony Kennedy, as evidenced by the large number of cases in which Kennedy provides the critical fifth vote to the majority coalition. The replacement of Scalia by Gorsuch (or, practically speaking, any other judge that the president would likely name) will not reassign that median justice mantle.

On the other hand, a second appointment to replace Kennedy himself would give the president the opportunity to move the median. The fact that Trump has named Thapar as his first lower-court nomination lends support to the idea that Thapar is a front-runner for a second Supreme Court vacancy, were one to open.

His tenure on the Sixth Circuit will provide information to court watchers, and the president, as to where the court median might move if Thapar is indeed nominated and confirmed.

Jonathan Nash is professor of law at Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. Follow him on Twitter @JonathanRNash.

The views of contributors are their own and not the views of The Hill.