Currently, all the polls are showing President Donald Trump trailing. I’m not putting too much stock into that since the polls said about the same thing four years ago and we all remember how that worked out.
But, hypothetically speaking, what if they’re right this time? We already know that Joe Biden wants to enact a massive number of new gun control laws. If he and the Democrats take the White House and Senate while holding onto the House, they’ll have the means to do pretty much whatever they want.
Yet Trump has a legacy which may hurt a President Biden’s efforts for a long time to come.
Joe Biden will need more than a win in November and a Democratic takeover of the Senate if he wants to rival President Donald Trump when it comes to shaping the makeup of the federal courts.
He might also need lots of judges to retire.
While plenty of attention has been paid to possible openings on the Supreme Court, only a tiny fraction of legal cases ever make it to the highest court in the land. And there are no vacancies on the nation’s powerful federal appeals courts.
“He has no opportunity when he first comes in to fill any appellate vacancies because there won’t be any,” said Carl Tobias, a law professor at the University of Richmond School of Law who researches federal judicial selection.
No president going back at least as far as Ronald Reagan has been inaugurated without any spots to fill on federal appeals courts.
When Trump took office, 17 such vacancies existed, largely thanks to the fact that the GOP-controlled Senate under Majority Leader Mitch McConnell stonewalled nominations made by former President Barack Obama.
Over the nearly four years of Trump’s first term, the Senate has confirmed more than 50 of his appointees to appeals courts. Those appointees now make up more than 1 in every 4 judges on the federal appellate bench. The administration’s focus on confirming appeals court judges, even at the expense of district court judges and other priorities, was “ruthless, mercenary and single-minded,” Tobias said.
In other words, if Biden pushes gun control, there’s a decent chance the courts will crush it before it can really have any kind of an impact.
While one in four is only 25 percent of the judges, let’s also remember that many were appointed by Republicans as well, meaning the number is actually much higher. While the Clinton-era judges still exist, they’re retiring or dying off, having left vacancies to be filled. Obama had difficulting getting judges confirmed, which minimized his overall impact in filling vacancies.
So, while Democrats are hopeful for a win in November, the truth is that even if they do win, gun control won’t be the slam dunk they like to believe it to be. They’ll still have to contend with the courts and that will require far more than just appointing a handful of judges and calling it a day.
It doesn’t mean they can’t. After all, expansion of the lower courts is always possible, which becomes their only hope.
It also means that it’ll be time to use every trick in the book to make sure the legislation pushing that doesn’t see the light of day.
Regardless, there’s a real chance that despite the left’s potential efforts, they still wouldn’t be able to get the dystopian nightmare they call gun control.