Hi, and welcome back to Legal Geek. This week, we update you on the tribal sovereign immunity strategy used in some pharma patent cases, and then review the reasons behind a surprising set of trends in how quickly open seats in the federal judicial system have been getting filled so far under President Trump.
https://archive.org/details/LegalGeekEp131
A few months back we covered a case where a pharmaceutical company assigned its patents to a Native American tribe and then argued tribal sovereign immunity of that tribe stopped the patents from being challenged for invalidity in government proceedings. Recently, Congress has introduced a bill that would exclude patent proceedings from what tribal sovereign immunity applies to, which would eliminate this potential loophole. While it remains to be seen if this becomes law, do not be surprised if other similar loopholes are located and leveraged even if this one is addressed. In other words, never doubt the genius ideas of some litigators with big budgets and a lot of time.
Turning to this week's main topic, the Trump presidency has certainly been marked with a lot of memorable news moments. However, other than the tax bill passed a few months ago, it's hard to point to many things that will be long-lasting legacies of this presidency. One notable exception to this is our subject today: the federal judiciary.
While it may be easy to overlook with sexier news stories always popping into your attention each week, the Trump administration has established unprecedented success in quickly nominating and gaining approval of new federal judges. Federal judges at all levels from local courts to the Supreme Court are appointed by the executive branch and then reviewed by the Senate for approval before joining the federal bench, and these are lifetime appointments for the judges. Thanks to the presidency and the Senate being held by the same party for this two-year period, any opposition to Trump's generally-conservative nominees has been mitigated.
Here's some numbers to explain Trump's quick filling of the federal bench compared to prior presidents. He has nominated 69 potential judges to the bench in his first year in office, compared to 34 in Obama's first year, and Obama is more in line with the average. The Senate has already confirmed 29 of these judges, 15 of them at the Court of Appeals level or at the Supreme Court. That number of 15 high-level judge confirmations in one year is nearly more than the first years of the last three presidents combined, as Obama had 6, Bush 7, and Clinton 3. So the Trump Administration is filling up a lot of the federal judiciary with judges who may hold more with his views than the judges they may be replacing, and such a trend is somewhat troubling.
Why is this happening? In addition to the White House and the Senate being held by the same party, the obstructionist recent past of judicial nominations has been the primary driver to where we are today. During Obama's presidency, judicial nominations languished in front of the Senate as nobody could drive these nominations through, including most notably the year-long delay on Supreme Court nominee Merrick Garland before Obama left office. The obstructionism continued when Neil Gorsuch replaced Garland on the Supreme Court nominee agenda, and all the while more and more open judicial seats were left unfilled thanks to retirements not being replaced.
So it's clear why a critical mass of seats are there to fill, but the obstructionism of past Senates came to a head when the GOP removed the filibuster rule that used to apply to judicial nominees, making it possible to push for votes with only 50 members on board instead of 60 out of 100 under the filibuster rules. Without the filibuster rules, a simple majority can push through a lot of nominees in a short period of time, and that's precisely what happened. So while the overloaded dockets of federal courts caused by so many open seats is being addressed, the process for vetting and approving judicial nominees has changed significantly.
Not surprisingly, one party had to be the first to take advantage of that situation. If a blue wave occurs in future elections, we may see similar results with Democrats in charge, but with different ideological judges. However, the big crush of openings available in the judiciary won't likely repeat itself like this, meaning the long-lasting effect of the Trump presidency may be first and foremost, a reshaping of the federal bench to be far more conservative.
The Bottom Line is, when there's obstructionism in government processes, sometimes that forces only the cream of the crop to move forward. Unfortunately, it can also lead to opportunities like this one, and it may indeed be the biggest effect of that landmark 2016 election. We will keep an eye on the courts moving forward to see where they go.
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