Trump Appointments Are Reshaping More Than The Supreme Court: In today’s episode, we talk with Hiram Sasser from First Liberty Institute. We discuss things such as, why it is so important to look at the lower courts, the people who are influencing Trump’s decisions, if Trump is delivering on his promises, and so much more, right here on WallBuilders Live.

Air Date: 07/03/2017


Guests: Hiram Sasser, David Barton, Rick Green, and Tim Barton


Listen:

Download: Click Here

 

Transcription note:  

As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast.  However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers.  Additionally, names may be misspelled because of the difficulty in understanding the speaker at times. We apologize in advance.

Welcome

Rick:

Welcome to the intersection of faith and the culture, this is WallBuilders Live! We”€™re talking about today”€™s hottest topics on policy, faith, and the culture, all of it from a Biblical, historical, and constitutional perspective.

We’re here with David Barton, the founder of WallBuilders and America’s premiere historian. Also, Tim Barton, president of WallBuilders, national speaker, and pastor. And my name’s Rick Green, I’m a former Texas state rep, national speaker, and author.

You can find out more about all three of us, the program, and the guests, and all these things at WallBuildersLive.com. Get a list of all of our stations across the country that we’re on and also you can get the archives from the last few weeks or so and just find out more about the program. Also, you can visit WallBuilders.com for a wealth of information about the organization itself and some incredible tools. Check out those two websites today.

Our guest later in the program, Hiram Sasser, is from first liberty. They do incredible work in the court system, in fighting for religious liberty, in defending religious liberty, and educating folks on what the First Amendment is really all about.

But they’re also very involved in the court system in terms of helping to select judges, watching who’s out there, and kind of monitoring where we are, in both the federal and the state court systems. So, Hiram Sasser will be here to give us an update later in the program on what it looks like in terms of the vacancies right now. And Donald Trump’s appointments that he’s been making.

And for now, we’re here with David and Tim Barton. David, Tim, you know obviously the court is huge. We talked about it on the program all the time, how important are these appointments at these appellate and lower level courts? Most people only pay attention to the Supreme Court justices.

Why It Is Important To Look At Lower Court’s

David:

They’re really important because for example when you look at what happens at the U.S. Supreme Court, the U.S. Supreme Court gets about 8,500 requests a year to hear cases. They take about 80 of those.

So, look at the tiny percent. Well, that means that 99% percent of the cases that are decided by the Court of Appeals, that is essentially the Supreme Court decision because that’s as far as it”€™s going to go. That’s the same in district courts.

District Courts make all these decisions and people can appeal it to the higher court, circuit court of appeals, they don’t take all those. So you’re looking essentially at about 99.9% of cases that are decided at lower courts are going to stay with the decision of lower courts. And while we love to see Supreme Court win we get in, there is no way that you’re going to take a hundred thousand cases a year- you take 100,000 cases a year essentially, which goes through the federal court system, and only 80 of those are going to reach the U.S. Supreme Court.

That means you”€™ve got to put a lot of attention on those lower courts because they will have the final word on 99 thousand 9 hundred and 20 cases essentially. So it’s really important to look at lower courts.

How To Determine Who The New Judges Are Going To Be

Rick:

So he’s actually got these many openings, and looking for people to fill those, how do you- you’ve been around this, you’ve been an adviser to presidents before on this kind of thing, and governors, and certainly a lot of the people that are serving in those positions. I mean, what’s going on behind the scenes right now to determine these hundred to a hundred and fifty different new federal judges, who they are going to be?

David:

Well, there’s really a couple ways that it happens. Typically, most presidents don’t pay a whole lot of attention to the federal district court and they kind of give that to the senators.

So they kind of defer to the U.S. Senators to make the nominations for Fed-And by the way, there are about 140 some odd vacancies open right now in the federal judiciary. And that 140 some odd vacancies, there about, that’s about 15-18 percent of the federal judiciary is open right now, needs some judges in those slots.

Oftentimes, the senators that do that and they’re the ones that come up with it and senators oftentimes make recommendations for the court of appeals in Texas, we’re under the Fifth Circuit.

So, the senator from Texas, and Senator from Louisiana, and the senator from Mississippi, which are all on the fifth circuit, they would say, “€œHey, President Trump here’s someone we think would be great for the Fifth Circuit.”€ And then when it comes to the U.S. Supreme Court the president usually chooses.

Now, in the case of most presidents, they really don’t listen necessarily to the senators at the court of appeals level, they kind of look for their own. And so they have folks that are assigned to go check these guys, vet these guys, really go through to see what their decisions are, etc.

They”€™re looking for folks that have philosophical views like you do. In this case, President Trump has said, “€œMy judges are going to be pro-life.”€ So he will check that and make sure they are. He doesn’t want that promise to be broken and come back and bite him later. So he will check for pro-life justices.

At this point, he has nominated three batches of judges. There are three groups of judges that he said, “€œThese are ready for the court.”€ And what’s interesting is some of these lower court judges, and by the way, you remember that during the campaign he came up that list about 21 different names? “€œHere’s who I will appoint to the Supreme Court.”€

They”€™re Finally Asking Good Questions

Rick:

It was the game changer for Cruz, right?

David:

It absolutely was.

Rick:

He said, “€œI’ll support him now.”€ Those names came out, people vetted them all over the place. Well, he’s now taken some of those folks that did not make the Supreme Court because he chose Gorsuch and he’s now putting them on the court of appeals.

So, we’re talking about people have already been vetted at very, very high levels even publicly by every group that’s out there because they saw those 21 names.

So, he’s doing a great job of choosing the right kind of justices so far. Now, sometimes you get surprised, in the case of Eisenhower, he put Earl Warren on the Supreme Court. And here’s a guy who went through D-Day and he had a full military career. Of all the things he did he said, “€œThe greatest mistake he ever made in his entire life was to put Earl Warren on the court.”€ Well, he does so many right things. But that was the wrong thing.

Rick:

Same thing with Reagan. I mean, Reagan gave us O’Connor.

David:

Yeah, O’Connor.

Rick:

And Souter, no wait Bush gave us Souter?

David:

That”€™s right, gave a Souter as well. So, sometimes you try to vet and do a good job and it doesn’t always work out. But in the case of Trump, they have a lot more experience now asking better questions. Because Reagan didn’t ask those kinds of questions because nobody thought you had those kinds of judges back then. So, it’s a whole different thing. So that’s the good news, we’re starting to see these people go in the courts and we don’t hear much about it. But one of the guys who really watches this, who really has invested interest is Hiram Sasser.

Hiram is one of the directors of litigation over first Liberty and they’re the guys who argued the case in front of these judges. Particularly, first amendment cases. So they really do watch what happens here. Hiram”€™s got an update on what’s happening with some of these appointments now.

Rick:

Great folks over there at First Liberty, good friends of ours, and just fantastic culture warriors out there especially in the in the legal front. Hiram Sasser, our guest when we return, right here on WallBuilders Live.

Chasing American legends

Rick:

If you ever wonder if it’s over for America.  Can we restore those constitutional principles that made our nation great? Then we want to encourage you.  We want to show you some evidence of how it can be done. We want to show you the evidence behind what made America great in the first place. And we want to have some fun while we’re doing it.

It’s called Chasing American Legends. It’s our special television program that follows the Green family around the nation investigating myths and legends about America.  And it’s amazing what we have found and what we’ve discovered. Dove Channel is now airing Chasing American Legends and we want you to check it out.

We’ve got a link today at WallBuildersLive.com so you can find out more about Chasing American Legends, airing now on the Dove Channel. We’re going to take you and march with the Minutemen for the re-enactment of April 19th, 1775. That shot heard around the world. Take you to investigate the battles that George Washington was in.

All kinds of great episodes.  Check it out right now at DoveChannel.com.  Give our family a chance to inspire yours. We know we can give you some hope of the future of our nation. Check it out. Chasing American Legends at DoveChannel.com

Moment From American History

This is TimBarton from WallBuilders with another moment from American history. In the early seventeen hundreds, the Reverend John Wise preached that all men were created equal, that taxation without representation was tyranny, and that God’s preferred form of government was the consent of the governed.

All of which is language recognizable in the Declaration of Independence. Why? Because in 1772 the Sons of Liberty led by founders Sam Adams and John Hancock reprinted and distributed the Reverend Wise’s sermons.

Four years later much of the declaration reflected the language of those sermons by John Wise.  In 1926 on the 150th anniversary of the Declaration of Independence President Calvin Coolidge affirmed, “€œThe thoughts in the Declaration can very largely be traced back to what John Wise was saying.”€

Few today know that the Declaration was so strongly influenced by the Rev. John Wise. For more information on this and other stories go to WallBuilders.com.

Judge Thapar Is Official

Rick:

Welcome back, thanks for staying with us, our guest today is our good friend Hiram Sasser from First Liberty. Always doing great work, Hiram, appreciate all that y”€™all do for our religious liberties and other liberties. You guys are fighting in court cases all across the country and winning all the time. Appreciate your time today, man.

Hiram:

Hey, thanks for having me.

Rick:

Hey, let’s talk specifically about some of the nominees from President Trump. I know you and Kelly had put out the word that obviously, we are all very pleased with Gorsuch, we talked to you all back when that happened. But now we’re getting into some of these lower courts, some of the appellate courts and some of the district courts. What are you seeing and do you like what we’re getting there as well?

Hiram:

I think we’re getting some great nominees. I mean, goodness sakes, the one that’s been confirmed at the Sixth Circuit, Judge Thapar,  we actually had the privilege of- I think our case was the first en banc court case that he was going to be participating in.

It was actually kind of fun because as he was walking in with the other 15 judges for the sixth circuit in Cincinnati, Ohio he had just been confirmed by the Senate just a few weeks prior and he actually kind of like went the wrong way coming in.

David:

He”€™s like a freshman in the legislature, I remember those days. You couldn”€™t even find the bathroom.

Hiram:

I kind of chuckled and smiled, he went to the inside of the chairs instead of the outside of the chairs, and he has to go because he’s the furthest guy, he”€™s got to walk around. But it was great because here we are, the vote is- in most of these circuit court cases en banc are very tight, right? So, maybe one judge here or there could really make a difference.

Rick:

Hiram, real quick, for our non-legal audience out there this is where you’d pad a case with maybe with three judges and appeal it en banc. So now it’s all those judges on that appellate court that are coming in.

Hiram:

Yes exactly, right. So, in this case, this case was about legislative prayer. It was about invocations that were being made by the county body, the county commissioners. Now, the Supreme Court’s already ruled that this is protected under the tradition of this country and that is clearly not a violation of the Constitution.

But the various groups have been, like Americans United for Separation of Church State, are making the argument that because the county commissioners themselves were the ones that were praying that that somehow changes the dynamic of the legal analysis.

The three-judge panel, the majority opinion, agreed with their position. So we were seeking en banc review, we represent the county, seeking en banc review at the 6th circuit en banc. So instead of sitting in front of all 16 judges-

Rick:

And you’re saying often in these on cases it’s very close. I interrupted you, I apologize for that. You’re saying it’s very often close with this larger group and so he could be a big difference maker there?

Hiram:

Exactly. I mean, we could potentially win this by one vote, right? Because if it’s a tie, if for instance if it had been a tie vote, then the tie would have gone against us because we lost below. So, having him there-but it’s not just the vote. It’s also having him there, he was very active, asking very very good questions, and was very very engaged. And so it was just nice to be able to see, the fruits of the labor so to speak, already sitting on the bench.

Conservative Judges Are Out Numbered 11 To 4

Rick:

Yeah, that’s huge. And like you said, even asking those questions, I mean, even while it’s happened it’s almost like a legislature, there’s influence happening at that point on those other judges, they’re having to think about things maybe they hadn’t thought about before. So, great to have him in the mix there. And another great example. You guys have a website at FirstLiberty.org where you’ve on a map shown all of these open seats, these pellet seats, the district courts, I think there’s like a hundred District Court vacancies, right?

Hiram:

Yeah, there are. All over the country, some places have concentrations of District Court openings. For example, Texas has over ten district court seat openings that are going on right now.

And what’s interesting is about a lot of these openings is that we have to go back and remember what happened in the waning years of the Bush administration. Like in the final year the Bush administration left many many seats open, unfilled. And so what happened was, especially like in places like the Fourth Circuit, you”€™d think the Fourth Circuit which covers Virginia, West Virginia, and North Carolina, and South Carolina, and Maryland, you would think that the Fourth Circuit would be very conservative in that block.

But in fact, there are some issues that I think your listeners would care about where the more conservative judges are outnumbered in some cases 11 to 4. Ok, and this used to be a reliably conservative circuit many many years ago. But because those seats were left open at the end of the Bush administration, I think it was three if I’m recalling correctly, it might have been four.

Rick:

So when Obama came in he was able to stack them?

Hiram:

Stacked it. Plus there were others. Obviously, retirements and things like that happen. And so as a result that court quickly shifted left. If you’ll notice when the groups were filing their lawsuits against the Trump executive order on the travel situation they filed in the Ninth Circuit and the Fourth Circuit.

Everyone knows the Ninth Circuit leans liberal. I think it was shocking to people to figure out that a court sitting in Richmond, Virginia is one of the most liberal circuits in the country in terms of numbers.

How Long It Takes To Get Appointments Approved

Rick:

Tell me about the timeline at this point. I mean, we’re six to seven months into the Trump’s term. How long does it take typically to get these appointments done and approved? Do you think by the end of the year most of these vacancies will be at least in the works if not actually filled?

Hiram:

It really depends. You’ve got 23 circuit openings, you’ve got 123 District Court openings, you’ve probably got a little over 20 maybe 23 future vacancies that are going to be happening here pretty soon, there’s Ninth Circuit nominees that Trump has already put forward now, thirteen district court nominees, none of them yet are even up to the point of getting a floor vote.

What’s happening is even though under the old rules, it used to be that you had to get the 60 votes to confirm these judges, right? Well, then the Democrats decided that they didn’t like that. Under Obama, it was slowing them down.

So they changed it to just a majority vote. But there still is the process of having to have what’s called a “€œClosure Vote”€ and to get to that majority vote scenario it takes days, it takes time, right?

And so there’s just not enough days and time for all the other Senate business to get done, plus pushing these through. So, what should be something that happens relatively quickly, is going to be a longer process.

That’s what the Spahr thing was really amazing at the 6th circuit, that he was able to get through with lightning speed. But the process here is it’s going to take a long time to get it to finally unfold.

The People Who Are Influencing Trump”€™s Decision

Rick:

Let me ask you, for our listeners that are wondering, “€œOk, will they be good judges?”€ Tell us just real quickly about the process of the people that are influencing Trump’s decision on who gets nominated right now. It seems like he’s surrounded himself with some pretty good folks. I mean, it’s a lot of our kind of folks that are vetting these judges and recommending their nomination.

Hiram:

Let’s start at the top. Really, there are two figures that I think have the most influence over the White House part of this process. That’s Don McGahn, obviously, the White House counsel. And then Leo who’s an outside adviser, who is second in command at the Federal Society, which is a large nationwide conservative group of lawyers.

Rick:

Very conservative.

Rick:

Those are great, great folks to have at the top overseeing this process. But more importantly, the staff at the White House counsel’s office, the lawyers. Any of these guys that are down on the list here. These are all really solid committed and conservative people who are very, very intelligent, highly qualified, and they’re looking for people that are also conservative and who are highly qualified. So the types of nominees that I think we should expect from this administration is a cut above what we might have seen in past Republican administrations.

Rick:

Yeah, that’s good. That’s very good news. Well, I want to encourage people to go to Liberty.org. First of all, to support you guys, get on the email list, donate so y”€™all can continue to win 90 percent of your cases and be a force in the legal world right now and so many of these important battles. But secondly, go to that FirstLiberty.org/courts, which will have a link to on our website today to make it easy.

Just look at all those vacancies, and literally I would encourage the audience to go there and pray over these vacancies, and the nominees, and this is huge, this is so important to the future of our country and pray for good people to get nominated, good people to get approved, and for this whole process, all the people Hiram is talking about behind the scenes that are involved in this to have wisdom in what they’re doing.

Hiram, you guys keep up the great work, appreciate all that you all do! I look forward to getting you back!

Hiram:

Thanks for having me!

Rick:

Stay with us folks, we”€™ll be right back with David and Tim Barton.

Pastors Only Briefing Trip

David:

Hi, this is Tim Barton with WallBuilders and I want to encourage all the pastors out there with the unique opportunity that we’re presenting it WallBuilders. We’re doing a special tour just for pastors that you can come and learn more about the spiritual heritage of our nation. Not just seeing the sights but understanding the significance of what they are and what they represent. We get to go to the Capitol at night and we get to see the spiritual heritage of our founding fathers of who we are as a nation where we came from.

We bring in Congressman then I’ll tell you the current legislation about our religious liberties and freedom and what’s going on in Washington D.C. if you’re a pastor or if you want to recommend your pastor for this trip you can go to our website at www.WallBuilders.com and there’s a link that’s for scheduling if you click on that link there’s a section for pastors briefing. There’s more information about the dates when it’s going and how it’s going to happen. If you want to know more about our nation our religious liberties our freedom our spiritual heritage. This is a trip you want to be a part of.

Is Trump Delivering On His Promises

Rick:

We are back on WallBuilders Live! Thanks for staying with us! Thanks to Hiram Sasser and all the attorneys at First Liberty and the rest of their team. They just do a phenomenal job. We appreciate their time. Check out that website, we have a link today. You can kind of see the map and see all the vacancies on the court and keep up with those appointments and like I said, certainly pray over those vacancies and they got to raise up the right folks.

We’re back here with David and Tim Barton. Guys, just give me your gut feeling, both of you, on how you think Trump’s doing? Has he followed through because he promised pro-life judges and constitutionalists and all that back in the campaign? I mean, honestly, when he was first saying it I wasn’t sure. But then he started surrounding himself with good people. And now we’ve seen so many good appointments in the cabinet and different things. What do you think about the court? Do you think he’s done a pretty good job of following through on that?

Tim:

I’m going to jump in first, I’m going to say just based on what we’ve seen to this point, it definitely seems like he’s given us the right kind of judges based on what he said he was going to do.

Obviously, there are so many open seats as Hiram points out, the battle with the Senate, and all they’ve got to do, and how much we can get done, it shouldn’t be a long process, but it’s taking a long time. It could be interesting to see how some of this plays out.

There’s still a lot of open seats, which actually, is very encouraging that you can have so many good judges that can be appointed and really hopefully change the direction of some of these decisions and some of this case law that is so often referenced in many of these court decisions with earlier case precedent. But to this point, it certainly seems like Trump is delivering on the kind of judges that he said he was going to give.

Why En Banc Is So Important 

David:

By the way, we have the Fifth Circuit here, I think two positions open right now. So, I was just asked, who we thought should be those judges. So they’re going and asking folks and they’re asking for folks who know something about the process and the kind of qualifications they want.

It’s good to see him doing that. And if I just look down, for example, there’s the second list of folks that came out. You have Justice Allison Eid of the Colorado Supreme Court for the U.S. Circuit Court of Appeals for the Tenth Circuit. She was one of the folks on the Supreme Court list for  Trump.

You have Professor Stephanos of the University of Pennsylvania Law School for the U.S. Circuit Court of Appeals for the 3rd Circuit. You have already a sitting Judge, Judge Ericskon of North Dakota for the U.S. Circuit Court of Appeals for the 8th Circuit.

So what they’re doing is they’re vetting these guys and starting to move them through. Now, as Hiram noted, some of this process is slow because you still have to deal with cloture. Even though they’re using only 51 votes to pass the judges you still have to get it to a vote. So that doesn’t always go fast. But literally, they’ve got good folks that they’re putting on.

One of the things, and Rick, I’m really glad you brought up en banc. But let me see if I can give some perspective on that. Because if folks don’t know, when you go to the court of appeals you argue your case in front of three judges. At the Court of Appeals, it’s a three-judge panel. And if you, I think the California or the 9th Circuit Court of Appeals has 25 to 26 justices and they will just be electronically, randomly pick three.

Those folks will hear the decision and when the court of appeals renders a decision it’s rendered by a three-judge panel out of that 25 or 27, however many it is. And then if you don’t like that decision then you appeal en banc.

You said, “€œHey, I don’t want the three-judge panel. I want all 25 or 26 of these guys to sit here and hear this.”€ And then those judges will vote. And if the majority of them say, “€œWe do or we don’t.”€ It takes a trigger amount of whatever circuit you’re in. If you get enough to say, “€œHey, I don’t like the decision of a three-judge panel. I do want to look at this thing and that’s what Hiram was talking about that en banc decision.

So they lost to a three-judge panel but enough guys on the court itself said, “€œWell, we think they got it wrong let’s look and see.”€ And so that’s why they’re arguing that. And what you’re looking at, there are 179 courts of appeals judges and there’s 11 Circuit Courts of Appeal. So at that point, you’re looking at averaging 16-18 judges on most courts of appeal and that’s why en banc becomes significant.

What Trump Is Doing Right Now Is Very Significant

By the way, just for perspective, there are 874 judicial judgeships. They’re called, “€œArticle 3 judgeships.”€ Article 3 judgeships means that Congress creates the judge position. The Constitution does not create a position for judges, it just says, “€œYou’re going to have the judiciary.”€ It’s Congress who builds a judiciary.

So that’s nine on the Supreme Court, that’s one hundred seventy-nine on the court of appeals, you have the court of international trade which has nine, and that’s 677  for all the district courts.

So when you have 146 openings out of 874 total judges that’s a lot of openings. And that’s why significant what Trump is doing right now. He’s trying to get those filled. But again it’s not a fast process. But what he’s chosen so far has been very good.

Rick:

So now, what can we do? That’s the next question. Because the federal court is something that people feel really you know like it’s this Spaceland out there we have no say whatsoever on what’s going to happen to the court. Is this one of those deals where you call senators and encourage them to approve or to move this thing to closure? I mean, does that help at all?

David:

Yeah, you can put pressure on senators. Now, the problem is you”€™ve got to put pressure on Democrats senators. It’s not the Republicans that are having trouble with cloture. It”€™s that you have to pick up nine Democrats and at this point Democrats- I was talking to a U.S. senator just a couple of nights ago and he said at this point they’re demanding cloture on every single thing.

If you”€™ve got a bill to go to the bathroom they’re going to say, “€œWe want cloture on that.”€
And there’s going to be the entire Democratic caucus who says, “€œWe vote no on it.”€ So they’re trying to obstruct every single thing they can no matter how big how small.

And that’s where the pressure needs to be put is with senators that are out of blue states. They’re probably not listening really well because they’re staking everything on an being a destructionist and trying to stop the progress. But other than that, do a lot of praying, do a lot of social media, and get a hold of those senators.

Thanks For Listening 

Rick:

Thanks for listening today, folks. And thanks to Hiram Sasser and the folks over at First Liberty. You’ve been listening to WallBuilders Live!