The Left now gleefully celebrates the Wuhan coronavirus, hoping for an economic collapse, praying for death of this or that Republican figure, and (of course) chomping at the bit for Trump’s electoral demise in November. As one of many examples, Jennifer Rubin (the ex-conservative, ex-Republican, currently washed-up Trump Derangement Syndrome-suffering Never Trumper) is positively giddy about the prospect of Republicans dying from the Wuhan coronavirus. And yet, there is one aspect where the Left’s celebration might be a little premature – the judiciary. Given that the elderly are the one demographic that is most vulnerable to the Wuhan virus, the jubilation one sees on the Left might be misplaced.
A typical appellate judge is rarely younger than his late 40s at the time of appointment – 50 plus is a more typical age. Given that time marches on, there are no longer any full-time appellate judges appointed by Jimmy Carter on the bench - a few of Carter appointees have senior status, meaning they are semi-retired. As a minor curiosity, there is exactly one district court judge appointed by Jimmy Carter (Judge Carmen Consuelo Cerezo in Puerto Rico) who is still on the bench, and has not taken senior status.
A handful of Reagan-appointed appellate judges are still fully active (seven, to be exact), though they would have been appointed no later than 1988 – so the youngest actively serving Reagan appointee is 71 (Judge Priscilla Owen of the Fifth Circuit), and the oldest is 87 (Judge Juan R. Torruella of the First Circuit, based in San Juan, Puerto Rico).
George H.W. Bush only served for one term, so he had fewer appointees, and fewer of his appointees are still serving – only five are still fully active. Bill Clinton, George W. Bush and Barack Obama all served for two terms, and their cohorts are well represented on the appellate bench.
Consider, for example, the (still) very liberal Ninth Circuit, which covers the West Coast, Arizona, Nevada, Idaho, Montana, Alaska and Hawaii. There are 29 full-time judges on the Ninth Circuit – currently, 16 appointed by Democratic Presidents, and 13 by Republican ones. (Including the senior judges, who typically have half a caseload, or even less, the Ninth Circuit is at rough parity as far as party affiliation – but still, it leans very much left in most of its decisions.)
And here, we finally come to the ghoulish part of this article. Let’s say – just hypothetically, of course – that the coronavirus affects the elderly without regard for their lofty judicial status or political leanings. Let’s say, just for argument’s sake, that anyone who is older than 70 is at very high risk of death, should he (or she) be infected. In Italy, which today is at the forefront of the death statistics in the Western world, it is primarily, if not almost exclusively, the elderly who are dying. And let’s say that, a few months from now, the Wuhan coronavirus has done its work, and all appellate judges over 70 are no longer with us.
Ghoulish? Yes. Un-PC? Definitely. Macabre? A bit. Not the sort of conversation you expect to have at your next Chardonnay-and-shrimp-cocktail party? No doubt about it.
And yet… What does it mean in terms of numbers?
With age 70 as the cutoff for survival, on the entire appellate bench (179 judges when every position is filled), there will be 19 new vacancies that were previously held by Democratic judges and 12 new vacancies that were previously held by Republican ones. If Trump is still president and alive, and if he moves fast, and if the Senate hustles (that’s a lot of “if’s” there, but let’s be optimistic that Sen. Mitch McConnell (R-KY) can force this through), then Trump can fill all those 31 newly opened positions. This shifts the ideological balance of the appellate courts sharply to the right – from roughly 93 Republican and 83 Democratic judges today to roughly 112 Republican and 64 Democratic judges when all is said and done. (I am ignoring unusual cases, such as Judge Roger Gregory of the Fourth Circuit, and the Federal Circuit, which deals with patent and administrative matters, is generally less political than others.)
In the case of the Ninth Circuit, the balance would shift from 16 Democratic/13 Republican to 10 Democratic/19 Republican. As far as the Left is concerned, bye-bye Ninth Circuit. Bye-bye #Resistance. Bye-bye injunctions. Bye-bye obstruction. For the Left, this would be nothing short of catastrophic.
It gets worse – for the Left. The Ninth Circuit has 19 judges with senior status. All but four are over 70 (not surprising, since age is the usual reason to take senior status in the first place). 9 of the ones over 70 were appointed by Republican presidents, and 8 by Democratic ones. Under our “model”, only four senior judges will survive the Wuhan virus – two George H.W. Bush appointees, and two Clinton appointees. But overall, if we count two senior judges as equivalent to one full-time judge, this means the Ninth Circuit will swing very meaningfully to the right – equivalently it will be 20 Republican/11 Democratic.
Even the DC Circuit, which then-Majority Leader Harry Reid and Obama packed with leftist judges (and abolished the Senate filibuster in 2013 to do it), will swing to the right. Two active judges are over 70, so the DC Circuit will go from 7 Democratic / 4 Republican today to 5 Democratic / 6 Republican.
What about the district courts? Here, the Wuhan coronavirus will have little impact on ideological composition, mostly because district court judges tend to be a little younger when appointed, and tend to retire a bit earlier than appellate judges. Looking specifically at California, for example, there are at this point many vacancies – so far, not a single judge nominated by Trump has been confirmed. 44 judges are active – almost all of them nominated by Clinton and Obama. The Wuhan coronavirus would remove 9 judges – 7 Republican-appointed ones, and 2 Democratic-appointed ones. This doesn’t seem to help Republicans much – only a gain of two, if all their replacements are timely confirmed. If the district courts in California were to shift to the right, it wouldn’t be because of the Wuhan virus – it would be because of the appointments that still need to be filled.
In other states, the picture is generally similar. Consider Florida: of 37 active judges, 21 are Republican appointees. 2 are over 70 – one a Republican appointee, and one a Democratic appointee. So the Wuhan virus would lead to a gain of one judge for Republicans. Illinois has a similar situation: 26 active judges, only one (a Reagan appointee) is over 70. The Wuhan virus wouldn’t really change anything here.
But then, there is the big enchilada. The Supreme Court. Here, we need to tread very gingerly, respectfully, and with the utmost delicacy. One of the Supremes happens to be 87, and in very poor health, having survived four instances of cancer. (Many observers believe that that particular Supreme is no longer even functioning normally, and all of that Supreme’s opinions are actually written by that Supreme’s law clerks.)
Another one of the Supremes is 81 – and our “model” is very uncertain, to put it mildly, about the Wuhan virus survival chances of any Supreme over 80. Both of these Supremes were appointed by Democratic presidents (one of the two, the one who is 87, in fact, was originally appointed by Jimmy Carter to the DC Circuit, reminding us that the impact of a president’s judicial appointments reverberates through the decades, long after the president himself is mostly forgotten).
Thanks to the Wuhan virus, not only might Trump flip 19 Democratic appellate judgeships to Republican, but two Supreme Court Justices as well.
If I were a leftist, I wouldn’t get all warm and tingly about the Wuhan virus just yet… The virus will be dealt with in the next few months, but those judges… They’ll still be there 10, 20, 30 years from now.
George S. Bardmesser is an attorney in private practice in the Washington, DC area. He is a contributor to The Federalist and American Greatness, and is sometimes seen discussing politics (in Russian) on New York’s American-Russian TV channel RTVi.
