This is What Happened—This is How it is Reported

 

Trump-45 Federal Judicial Appointments

    3: Supreme Court Justices

  54: Article III circuit judges

234: all Article III Justices & judges (including federal district/trial court judges)

  26: Article I specialty courts

    1: Article IV Federal Territorial Courts

261: all federal judicial appointments (Article I + Article III + Article IV courts)

 

Biden Federal Judicial Appointments* 

    1: Supreme Court Justice

  45: Article III circuit judges

235: all Article III Justices & judges (including federal district/trial court judges)

  17: Article I specialty courts

    1: Article IV Federal Territorial Courts

253: all federal judicial appointments (Article I + Article III + Article IV courts)

 

 

This is how it was reported in the news. See, e.g., Stephen Neukam, ‘Schumer and Biden eclipse McConnell and Trump on confirming judges,’ Axios (Dec. 20, 2024), <https://www.axios.com/2024/12/20/schumer-judges-biden-mcconnell-trump> (emphasis added to text) (emphasis added to title):

Senate Majority Leader Chuck Schumer (D-N.Y.) confirmed his 235th federal judge on Friday, breaking the record [of 234 appointments] set by Republicans under the first Trump administration. 

See also: Alexander Bolton, ‘Senate confirms 235th Biden judge, surpassing Trump’s record,’ The Hill (Dec. 20, 2024, 8:53 PM ET), <https://thehill.com/homenews/senate/5051917-biden-judges-trump-record/> (emphasis added);

Sahil Kapur, ‘Senate confirms Biden’s 235th judge, beating Trump’s record,’ NBC News (Dec. 21, 2024, 12:11 AM GMT), <https://www.nbcnews.com/politics/joe-biden/senate-confirms-bidens-235th-judge-beating-trumps-record-rcna182832> (emphasis added);

Nate Raymond, ‘Biden secures 235th confirmed judicial appointee, one more than Trump,’ Reuters (Dec. 21, 2024, 12:58 AM GMT), <https://www.reuters.com/world/us/biden-secures-235th-confirmed-judicial-appointee-one-more-than-trump-2024-12-21/> (emphasis added);

Tobi Raji, ‘Senate confirms 2 Biden judicial nominees, boosting total over Trump,’ Wash. Post (Dec. 20, 2024), <https://www.washingtonpost.com/politics/2024/12/20/biden-judges-trump-record/> (emphasis added);

Courtney Buble, ‘Biden Exceeds Trump’s Record On Judges By One,’ Law360 (Dec. 20, 2024, 7:54 PM EST), <https://www.law360.com/pulse/courts/articles/2276197/biden-exceeds-trump-s-record-on-judges-by-one> (emphasis added);

and, 

Kevin Freking (Associated Press), ‘Senate confirms 235th federal judge under Biden’s presidency, beating Trump’s first-term tally,’ PBS (Dec 20, 2024, 8:03 PM EST), <https://www.pbs.org/newshour/politics/senate-confirms-235th-judge-under-bidens-presidency-beating-trumps-first-term-tally> (emphasis added).  

Trump-45 outpaced Biden: Trump-45 had more Supreme Court Justices (3-to-1), more federal circuit judges (54-to-45), more federal appellate judges (57-to-46), more Article I specialty court judges (26-to-17), and more federal judicial appointments in toto (261-to-253). 

Biden outpaced Trump in one category—“all Article III Justices & judges” (235-to-234)—and that is the lead, the news, and the only news. 

Again, Trump-45 outpaced Biden: Trump-45 had 2 more Supreme Court Justices, 9 more federal circuit judges, 11 more federal appellate judges, 9 more Article I specialty court judges, and 8 more federal judicial appointments in toto.

Biden outpaced Trump in one category—Biden had 1! more Article III judicial appointment—and that is the lead, the news, and the only news. 

Makes complete sense.

Seth

*After December 20, 2024 final adjournment of the Senate.

 

Seth Barrett Tillman, ‘This is What Happened—This is How it is Reported,’ New Reform Club (Dec. 23, 2:14 AM), <https://reformclub.blogspot.com/2024/12/this-is-what-happenedthis-is-how-it-is.html>;

See also Seth Barrett Tillman, ‘Senate Confirms 23 BIDEN-nominated Judges Since the Election (UPDATED),’ New Reform Club (Nov. 7, 2024, 6:56 AM, UPDATED Dec. 23, 2024), <https://reformclub.blogspot.com/2024/11/trump-45-v-biden-federal-judicial.html>; Seth Barrett Tillman, ‘Trump-47 and the Future of the Federal Judiciary (UPDATED),’ New Reform Club (Dec. 7, 2024, 3:09 PM, UPDATED Dec. 23, 2024), <https://reformclub.blogspot.com/2024/12/trump-47-and-future-of-federal-judiciary.html>;

A Letter to Axios on Trump-45 and Biden

 

AXIOS

stephen.neukam@axios.com

letters@axios.com

info@axios.com

 

 

RE: Stephen Neukam, ‘Schumer and Biden eclipse McConnell and Trump on confirming judges,’ AXIOS (Dec. 20, 2024), <https://www.axios.com/2024/12/20/schumer-judges-biden-mcconnell-trump>;

 

You wrote: “Senate Majority Leader Chuck Schumer (D-N.Y.) confirmed his 235th federal judge on Friday, breaking the record [of 234 appointments] set by Republicans under the first Trump administration.” (emphasis added)

 

Your statement here somewhat undercounts both Trump-45’s and Biden’s record. You are only counting appointments to positions on Article III courts (including the U.S. Supreme Court and lower federal courts). However, a President (i.e., Trump-45 and Biden) also appoints other federal judges. Such federal judges include: Article I judges for specialty courts (e.g., United States Tax Court, and United States Court of Federal Claims), and Article IV courts for the territories (e.g., United States District Courts for the District of the Virgin Islands, for the District of Guam, and for the District of Northern Mariana Islands). If you include Article III, Article I, and Article IV federal judicial appointments by the President, then Trump-45 had 261 federal judicial appointments, and Biden had only 253 appointments. [A President also can make appointments to the local D.C. Superior Court and the local D.C. Court of Appeals. Trump-45 and Biden made such appointments, but I lack accurate numbers as to how many each made.]

 

It is also worth noting that in terms of the more powerful lawmaking federal appellate courts, Trump-45 made 57 appointments (including 3 U.S. Supreme Court appointments), and Biden made only 46 appointments (including 1 U.S. Supreme Court appointment). See Seth Barrett Tillman, ‘Senate Confirms 23 BIDEN-nominated Judges Since the Election (UPDATED),’ New Reform Club (Nov. 7, 2024, 6:56 AM, UPDATED Dec. 22, 2024), <https://reformclub.blogspot.com/2024/11/trump-45-v-biden-federal-judicial.html>; Seth Barrett Tillman, ‘Trump-47 and the Future of the Federal Judiciary (UPDATED),’ New Reform Club (Dec. 7, 2024, 3:09 PM, UPDATED Dec. 22, 2024), <https://reformclub.blogspot.com/2024/12/trump-47-and-future-of-federal-judiciary.html>; 

 

Seth

Seth Barrett Tillman, ‘A Letter to Axios on Trump-45 and Biden,’ New Reform Club (Dec. 22, 2024, 9:58 AM), <https://reformclub.blogspot.com/2024/12/axios-stephen.html>;

A Passing Thought on Katz-Rosenblum versus Bamzai-Prakash

 

 

 

This three-part exchange on the scope of the President’s removal power occupied the academic imagination for over a year. That’s an impressive amount of time.

 

Aditya Bamzai & Saikrishna Bangalore Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756 (May 2023), <https://harvardlawreview.org/print/vol-136/the-executive-power-of-removal/>;

 

Andrea Scoseria Katz & Noah A. Rosenblum, Removal Rehashed, 136 Harv. L. Rev. F. 404 (2023), <https://harvardlawreview.org/forum/vol-136/removal-rehashed/> (responding to Bamzai & Prakash, supra);

 

and,

 

Aditya Bamzai & Saikrishna Bangalore Prakash, How to Think About the Removal Power, 110 Va. L. Rev. Online 159 (Aug. 2024), <https://virginialawreview.org/articles/how-to-think-about-the-removal-power/> (replying to Katz & Rosenblum, supra).

 

In their response, Katz and Rosenblum cite a 1916 treatise by Frank Goodnow. See Katz & Rosenblum, supra at 416 n.94 (citing Frank Goodnow, Principles of Constitutional Government 88–89 (1916)). In their reply, Bamzai and Prakash quote Goodnow as follows:

 

Here is Goodnow’s paragraph, which we quote in its entirety to allow readers to assess the relevant context:

The United States Constitution, as we have seen, vests the executive power in a President. The meaning of the power thus granted is, however, to be obtained from the powers subsequently specifically enumerated. These are:

1. The power to appoint all officers of the government except inferior officers, who, if so provided by law, may be appointed by their superiors or by the courts. This power, where not otherwise provided by law, is to be exercised with the approval of the Senate. No mention is made in the Constitution of any power of removal from office. All that is said with regard to the termination of office is contained in the provision with regard to impeachment, which is applicable to all civil officers, and that giving the judges a term of office during good behavior. The practice is, however, that the President has the power to remove arbitrarily almost all civil officers of the United States, not judges. This power has been recognized as belonging to the President as a part of the executive power granted to him.

Frank J. Goodnow, Principles of Constitutional Government 91 (1916).

 

Bamzai & Prakash, How to Think About the Removal Power, supra at 162 n.12 (emphasis added by Tillman).

 

Authors on both sides of this removal-related debate are citing Goodnow and his treatise (as good authority or, in order, to contradict the other side). Here Goodnow is taking the position that the President appoints “all officers,” except inferior officers of the United States. (emphasis added). But all know that the President does not appoint successor Presidents or any Vice Presidents. A fair inference from this extract from Goodnow is that the President and Vice President are not “officers of the United States”. 

 

My reading of Goodnow’s views is not exceptional. See, e.g., Frank J. Goodnow, The Principles of the Administrative Law of the United States 225 (Law Book Exch., Ltd., photo. reprint 2003) (1905) (“[T]he United States Supreme Court has held that no one can be an officer of the United States government unless he be appointed as the constitution provides, viz., by the President and Senate, the President alone, one of the United States courts, or the head of an executive department.” (emphasis added)); see also Bamzai & Prakash, How to Think About the Removal Power, supra at 162 n.13 (citing Goodnow’s 1905 treatise favourably).

 

In short, commentators, as well as courts and Executive Branch memoranda, for well over a century, have recognized that the President of the United States is not an officer of the United States.

 

Seth Barrett Tillman, ‘A Passing Thought on Katz-Rosenblum versus Bamzai-Prakash,’ New Reform Club (Dec. 22, 2024, 6:35 AM), <https://reformclub.blogspot.com/2024/12/a-passing-thought-on-katz-rosenblum.html>;

 

 

Tillman on Syria (from 2013)

 

Seth Barrett Tillman, ‘Responding to John McHugo’s Syria: Caught in a Trap,’ 64(2) History Today 66 (Feb. 2014), <http://ssrn.com/abstract=2312399> (posted on SSRN in 2013) (also available on EBSCOhost): 

Mr McHugo ends his article with: “During both periods [the Cold War and the Arab-Israeli conflict], many conspiracies were hatched against Syria. People often became paranoid in reaction to events.” (p.4)

If I were cheeky, I would point out that if “conspiracies” had—in fact—been “hatched” against Syria, then it makes little sense to call the Syrian people’s “reaction” “paranoid”. The people’s “reaction” should be described as “paranoid”, if and only if, there were no such “conspiracies”. Again, if I were cheeky, I would point out McHugo’s incoherence and leave it at that.

But I am not so cheeky.

Adopting the language of conspiracy without specifics of who and what, and when and where, simply means that one has given up substantive efforts to understand the world around him. And when a Western (would be) historian adopts the language of conspiracy in regard to the Middle East, it simply means that the Western historian has given up any effort to understand current events in favour of an oft-repeated and long-discredited narrative of certain less than wholesome elements of the so-called “Arab street” and the Ba’ath party. As Fouad Ajami explained:

The troubles and irresponsibility of the Ba’ath [Party] [in Syria] had played no mean part in the malady of the pre-1967 years. The Ba’athists had urged unity but had conspired against it after it materialized .... [Sami al-] Jundi’s account has the power of a genre of African fiction .... The theme is the bright nationalist vision ending in betrayal. The main characters begin as aspiring young men full of promise; they turn into tormentors and murderers who end up being tormented and murdered by others.

Fouad Ajami, The Arab Predicament 49–50 (1981). McHugo’s narrative has been put forward by those who realize that their present is a failure; that they do not understand their own past and how it shaped the present; and that seeks, in every instance, to deflect current and past failures onto others (preferably foreigners, Jews, and other disloyal—if not “traitorous”—domestic minorities). In the past, those who had adopted this narrative were almost exclusively party functionaries of the Ba’ath [Party] and other panegyrists for pan-Arabism. Why McHugo would promote this moribund narrative in the pages of History Today is a mystery. 

McHugo may genuinely believe the roots of this conflict “flow[]” (p.4) from the Cold War and the Arab-Israeli conflict. But those who are fighting in it, they think they are fighting for or against the Assad clan and Alawite oppression or are fighting under the banner of Islam in a Sunni-Shia (Alawite-Druze) sectarian civil war. See [Fouad] Ajami, [The] Arab Predicament 51 (1981) (“[N]o ideology will make the Alawites and Sunnis of Syria forget their primary loyalties.”). The Cold War and the Arab-Israeli conflict (and, for that matter, European colonialism) did not cause the current Syrian civil war; rather, the Cold War/Arab-Israeli conflict were a historical blip: a relatively peaceful intermission within the greater and long-running ethnic and sectarian conflict that is the Middle East.

Seth Barrett Tillman, ‘Tillman on Syria (from 2013),’ New Reform Club (Dec. 22, 2024, 1:52 AM), <https://reformclub.blogspot.com/2024/12/tillman-on-syria-from-2013.html>;

“Deep-State Shenanigans”

 

Bill Kristol Interviewing Professor Jack Goldsmith, ‘Conversations with Bill Kristol,’ Youtube (Dec. 13, 2024), <https://www.youtube.com/watch?v=cepel3piwdE> (at 27:10ff):

 

Professor Jack Goldsmith: 

 

[B]ut it’s normal for Trump, and let me just say part of what Trump is about is to just blow up all these norms [which] he just thinks … he thinks or talks acts as if he thinks, that they are just illegitimate, that they are corrupt, that the justice department is under the control of the Deep State or Democrats or some combination of both, and you know there were some Deep-State shenanigans against him in his first term, so and I get it, but this [?] is all completely out of the ordinary. [For us?] We unfortunately: it is about to become ordinary …. (emphasis added)

Tillman asking: I genuinely wonder how Goldsmith thinks Trump-47 should lawfully, reasonably, and proportionately respond to the “Deep-State shenanigans” about which he (Goldsmith) speaks. What precisely does Goldsmith think Trump-47 should do? And, if he (Goldsmith) cannot tell us, why complain that Trump-47’s conduct is “out of the ordinary”? 

Bill Kristol never followed with any sort of probing questions in regard to “Deep-State shenanigans.”

And when Goldsmith asserts that “this” is all completely out of the ordinary ... what precisely does Goldsmith’s use of “this” refer to? 

Seth

Seth Barrett Tillman, ‘“Deep-State Shenanigans”,’ New Reform Club (Dec. 15, 2024, 7:37 AM), <https://reformclub.blogspot.com/2024/12/never-followed-up-with-any-sort-of.html>;

See also: Seth Barrett Tillman, ‘Bob Bauer’s Free Speech Problem and Ours,’ New Reform Club (July 23, 2017, 10:36 AM), <http://tinyurl.com/y7ahouep>;

Judge Wynn’s Resignation

 

In January 2024, Judge James Andrew Wynn, Jr (4th Circuit) decided to take senior status. The Biden administration nominated Ryan Young Park, the Solicitor General of North Carolina, to succeed Wynn. A few days ago, the Biden administration withdrew the Park nomination. Now, about a month before the start of the new administration, Judge Wynn has rescinded his decision to step down from active status.

 

In 2020, the Fourth Circuit ruled against Trump-45 in an en banc proceeding in one of the Emoluments Clauses cases. See In re Donald J. Trump (DC & MD v. Trump), No. 18-2486, 958 F.3d 274 (4th Cir. May 14, 2020) (en banc) (denying mandamus relief in a 9-to-6 decision) (official capacity), Dkt. No. 100, 2020 WL 2485573, 2020 WL 2479139, <https://assets.documentcloud.org/documents/6890090/Trump-Emoluments-ca4-2020-05-14.pdf>, <https://www.ca4.uscourts.gov/opinions/182486A.P.pdf>. Judge Wynn filed a concurrence. See id. at 289. In that concurrence, Judge Wynn wrote:

 

Without a doubt, a lawsuit brought by the State of Maryland and the District of Columbia against the President of the United States catches attention outside the walls of the courthouse. How then should the Court avoid the appearance of partiality when there are eyes upon it? By applying the law and abstaining from grandiose screeds about partisan motives. Or, put another way—by doing its job. And that is exactly what the excellent majority opinion does.

But to the contrary, our dissenting colleague insinuates that “something other than law [is] afoot” here. First dissent at 308–09 (Wilkinson, J.). 

 

Id. (emphasis in the original). 

I don’t doubt Judge Wynn’s fine sentiments from his concurrence. I do not doubt that back in 2020, he sincerely believed what he had written. It is now 2024. And, in the future, I do not see how Wynn’s colleagues or the wider public would see his (again) stating such views in quite the same favourable light. If his having taken senior status was “doing [his] job,” then why has he rescinded? Should not his colleagues and the public see “partisan motives” on this occasion? Or, perhaps, Wynn recently suffered from a bout of unexpected good health and longevity?

 

Seth Barrett Tillman, ‘Judge Wynn’s Resignation,’ New Reform Club (Dec. 15, 2024, 3:05 AM), <https://reformclub.blogspot.com/2024/12/judge-wynns-resignation.html>; 

See generally Josh Blackman, ‘“Brazenly Partisan” Judge Wynn Withdraws Senior Status Because Trump,’ Reason–Volokh Conspiracy (Dec. 15, 2024, 4:40 PM), <https://reason.com/volokh/2024/12/15/brazenly-partisan-judge-wynn-withdraws-senior-status-because-trump/>; 

Note: I filed several amicus briefs in In re Donald Trump. See, e.g., Amicus Brief of Scholar Seth Barrett Tillman and the Judicial Education Project in Support of Respondent-Defendant, In re Donald J. Trump, President of the United States, in his official capacity, App. No. 18-2486 (4th Cir. Oct. 21, 2019) (en banc proceedings) (filed by Josh Blackman et al.), <https://ssrn.com/abstract=3450000> (refiling, per en banc court’s order, the Tillman and the Judicial Education Project’s brief we had previously sent to the original 3-judge circuit panel); Amicus Brief of Scholar Seth Barrett Tillman and the Judicial Education Project in Support of Petitioner, In re Donald J. Trump, in his official capacity, App. No. 18-2486 (4th Cir. Jan. 29, 2019) (filed by Josh Blackman et al.), ECF No. 28-1, 2019 WL 366219, <https://ssrn.com/abstract=3314703>.  

A Work-in-Progress: Select Bibliography of Court filings and Other Sources Regarding 2025 and post-2025 Litigation Involving the Foreign and Domestic (Presidential) Emoluments Clauses Cases

On January 23, 2017, during the first days of Trump-45, plaintiffs brought litigation against then-President Trump involving the Foreign and Domestic (Presidential) Emoluments Clause. See CREW v. Trump (S.D.N.Y.) (Abrams, J., subsequently Daniels, J.). In June 2017, two further, similar lawsuits were brought: DC & MD v. Trump (D. Md.) (Messitte, J.) and Blumenthal v. Trump (D.D.C.) (Sullivan, J.).

 

There has been chatter on social media suggesting that one or more players from those earlier cases will bring new (or renewed) litigation involving the same sort of claims and legal arguments. I could add information involving these newly, yet-to-be-filed cases to my older blog post. See Seth Barrett Tillman, A Work in Progress: Select Bibliography of Court filings and Other Sources Regarding the Foreign and Domestic Emoluments Clauses Cases, New Reform Club (Feb. 28, 2018, 8:59 AM), <https://reformclub.blogspot.com/2018/02/a-work-in-progress-select-bibliography.html>, <https://tinyurl.com/ybg5dg6u>.

 

My former blog post is long. Adding to it might be less than readable. Instead, I will start a new blog post here tracking filings in the newly, yet-to-be-filed cases. I expect something similar may be done on Lawfare, Just Security, Constitutional Accountability Center, and, perhaps, on a newly reactivated Take Care Blog. I am a lone blogger—so, it may be the consummate professionals at these other fora will be more quick to update their sites and also have more complete listings. My guess, based on past experience, is that their websites and blogs will lack good active links and substantial efforts at presenting complete citations with all available bibliographic information for a proper Blue Book citation. 

Feel free to send me material to add to this blog post as litigation proceeds to develop. See generally George Santayana (1905) (“Those who cannot remember the past are condemned to repeat it.”). 

Blog and Substack Posts

Bob Bauer, ‘Why It Matters That a President Declines His Salary,’ Executive Functions (Dec. 23, 2024), <https://executivefunctions.substack.com/p/why-it-matters-that-a-president-declines>; 

Seth Barrett Tillman, ‘A Work-in-Progress: Select Bibliography of Court filings and Other Sources Regarding 2025 and post-2025 Litigation Involving the Foreign and Domestic (Presidential) Emoluments Clauses Cases,’ New Reform Club (Dec. 15, 2024, 1:49 AM), <https://reformclub.blogspot.com/2024/12/a-work-in-progress-select-bibliography.html>;

See also Seth Barrett Tillman, A Work in Progress: Select Bibliography of Court filings and Other Sources Regarding the Foreign and Domestic Emoluments Clauses Cases, New Reform Club (Feb. 28, 2018, 8:59 AM), <https://reformclub.blogspot.com/2018/02/a-work-in-progress-select-bibliography.html>, <https://tinyurl.com/ybg5dg6u>; 

I Give Up

 

Trump-47 and the Future of the Federal Judiciary (UPDATED)

 

As things now stand, it looks like Trump-47 will start his administration with some 38 federal judicial vacancies. This assumes that all 7 of Biden’s current, pending nominees are seated before January 20, 2025. If all 7 of these Biden nominees to federal judicial posts fail to secure Senate advice and consent in the days ahead, then those positions will likely be filled by Trump-47. If none of these 7 Biden nominees secure Senate advice and consent, and there are no efforts to retract or rescind resignations, then it is likely that Trump-47 will have 45 federal judicial positions to fill at the start of his administration. As things now stand, December 23, 2024, it now appears that Trump-47 will have an opportunity to fill both the 38 and the 7 yet-unfilled federal judicial positions. (All 45 of these positions are Article III posts, as opposed to Article I and Article IV posts, and 4 or the 45 posts are federal circuit court of appeals posts.)

Some of these 45 judges might retract or rescind: their resignations, their intent to resign, or their decision to take senior status. In fact, since the election, apparently three Article III judges have already retracted their decision to take senior status. E.g., Judge Wynn (4th Cir).

It is also likely that any number of sitting federal judges will resign or take senior status in the days, weeks, and months ahead: that follow January 3, 2025, when the Senate flips to the Republicans, and that follow January 20, 2025, when the Biden administration ends. It is difficult to say how many judges will do so. Under the assumption that all or nearly all* Trump-45 federal judicial appointees remain in office, should Trump-47 appoint as many federal judges as Trump-45 appointed, and that is possible,** Trump will end his (second) presidential term having appointed more than half the federal judiciary, and also, possibly, more than half of the U.S. Supreme Court. 

 

Eight years will do that. And then there is Vance.

See <https://www.uscourts.gov/judges-judgeships/judicial-vacancies/current-judicial-vacancies>, and, <https://www.uscourts.gov/judges-judgeships/judicial-vacancies/future-judicial-vacancies>. See generally ‘List of federal judges appointed by Joe Biden,’ Wikipedia, <https://en.wikipedia.org/wiki/List_of_federal_judges_appointed_by_Joe_Biden>.

 

Seth Barrett Tillman, ‘Trump-47 and the Future of the Federal Judiciary (UPDATED),’ New Reform Club (Dec. 7, 2024, 3:09 PM, UPDATED Dec. 23, 2024), <https://reformclub.blogspot.com/2024/12/trump-47-and-future-of-federal-judiciary.html>;

See also: Seth Barrett Tillman, ‘Senate Confirms 23 BIDEN-nominated Judges Since the Election (UPDATED),’ New Reform Club (Nov. 7, 2024, 6:56 AM, UPDATED Dec. 23, 2024), <https://reformclub.blogspot.com/2024/11/trump-45-v-biden-federal-judicial.html>; 

*One Trump-45 judicial appointee has already left judicial service. IE. Michael J. Juneau, former United States District Judge for the Western District of Louisiana.

**It is possible, in part, because during the 119th Senate, the Senate will have a Republican majority. Whether the 120th Senate will have a Republican majority is a different matter.

In Remembrance of P.J. O’Rourke: Let’s Make a List

Which, if any or all, of these things (most) helped to elect Trump?

• Mainstream / legacy media
• Media’s normalization of foreign! gangs’ committing crimes in the U.S.
• Media’s normalization of Biden’s continuing presidency until January 20, 2025, although he was not well enough to run for a second term as President
• Media’s characterization of (every) political disagreement as a “crisis”
• Media’s characterization of every “crisis” as an “existential crisis”
• Media’s characterizing every person who disagrees about the scope of a purported “existential crisis,” or how it is best addressed, as a “denier”
• Academia
• Legal academia
• Citizens for Responsibility and Ethics in Washington (“CREW”)
• Constitutional Accountability Center and other CREW wannabes
• Universities’ adopting partisan political positions
• Universities’ failing to protect traditional expressive and association rights
• Civil rights & civil liberties organizations’ failing: to support those holding minority political opinions and to support minorities’ traditional expressive and association rights
• Criminal Defense bar’s sudden lack of interest in the U.S. Constitution’s Sixth Amendment (as incorporated against the States), jury unanimity rights, and Apprendi and its progeny
• Never Trump Republicans
• Cheney-the-Elder & Cheney-the-Younger
• Take Care Blog
• Lawfare Blog
• Russia Collusion Hoax/Mueller investigation
• Foreign Emoluments Clause & Domestic (Presidential) Emoluments Clause cases
• Ukraine telephone call impeachment
• January-6-events impeachment
• Special Counsel Jack Smith
• New York Attorney General Letitia James (ADDED)
• New York (Manhattan) District Attorney Alvin Bragg
• Georgia (Fulton County) District Attorney Fani Willis
• Section-3 ballot-access cases
• Professional commentariat: e.g., former U.S. prosecutors and former judges—state and federal
• Professional commentariats’ endless predictions which failed to materialize
• Swatting political opponents
• Stealing opponents’ political posters and otherwise defacing and destroying private property to advance political causes
• Defacing and destroying public property and museum exhibits to advance political causes
• Endorsements from actors and musicians
• Debanking clients based on political association and speech
• Regulators’ encouraging banks to debank clients based on: political association, political speech, and/or policy goals unrelated to the agency’s stated mission
• Killing Peanut (the squirrel) and killing Fred (the raccoon)
• And, those who sought to normalize any or all of the above

And post-election confirmation—explaining election losses by way of racism, misogyny, and low-information voters.

And will ANY of them take ANY responsibility for their “success”?

Honorable mentions:

• Those who endlessly parroted: “The walls are closing in”
• Podcasts and podcasters boldly and confidently predicting a Harris-Walz win (ADDED)
• All those entertainers who threatened to emigrate should Trump win the election
• All those entertainers who threatened to emigrate should Trump win the election, but (unexpectedly) have remained in the United States
• Those pollsters and party operatives who depended on the Taylor Swift vote
• Michael Avenatti and those who promoted and praised him
• Michael Cohen and those who promoted and praised him
• Hunter Biden laptop story and the response of the media, current and former intelligence agency heads, and other so-called “experts,” including academics and former prosecutors on blogs, on other social media, and those writing opinion editorials
• Bar organizations which and judges!! who sought to control attorneys’ non-professional and other out-of-court activities and speech
• Pollsters and other “experts” who, pre-election, expressed confidence (if not near certitude) of a Harris-Walz national popular vote victory!!! and/or electoral vote landslide!!!!
• Pollsters and other “experts” who, pre-election, expressed confidence (if not near certitude) of Harris-Walz’s prevailing in Iowa!!!!!
• Nobel Peace Prize selection committee
• Foreign political leaders who injected themselves into the U.S. political process
• Those who sought to normalize foreign political leaders’ injecting themselves into the U.S. political process
• And, those who sought to normalize any or all of the above

Seth Barrett Tillman, ‘In Remembrance of P.J. O’Rourke: Let’s Make a List,’ New Reform Club (Dec. 1, 2024, 2:34 AM), <https://reformclub.blogspot.com/2024/12/in-remembrance-of-pj-orourke-lets-make.html>; 

See also: Seth Barrett Tillman, ‘Who Was On The Remain Side?,’ New Reform Club (Jan. 18, 2019, 7:32 AM), <https://reformclub.blogspot.com/2019/01/who-was-on-remain-side.html>; 

See also: Emperor Tiberius to Caligula: “You and I will draw up a list during dinner. A long list.” Robert Graves’ “I, Claudius” (1934); 

 

The Law of the Case (II) and the Next Steps

United States v. Trump, Case No. 9:23-cr-80101-AMC, 2024 WL 3404555, 2024 U.S. Dist. LEXIS 123552, --- F. Supp. 3d ---- (S.D. Fla. July 15, 2024) (Cannon, J.), ECF No. 672, <https://tinyurl.com/hk4z7e76>, <https://www.courtlistener.com/docket/67490070/united-states-v-trump/>, appeal dismissed in regard to Defendant Trump (11th Cir. Nov. 26, 2024), ECF No. 81, <https://www.courtlistener.com/docket/68955302/united-states-v-donald-trump/>.

On November 25, 2024, Special Counsel Jack Smith filed a motion to dismiss in both the 11th Circuit case and in the United States District Court for the District of Columbia case. See ECF No. 79 (motion); ECF No. 81 (motion granted). Judge Cannon’s Southern District of Florida decision—dismissing the case based on Smith’s unconstitutional appointment and ultra vires appropriations made to Smith—is now the law of the case. It is good, persuasive precedent—albeit, not binding precedent. If the DOJ/Special Counsel had any inhibition relating to dismissal and leaving Judge Cannon’s final order and opinion as good, persuasive case law, then that inhibition now appears to be long gone.

Special Counsel Smith has had a full and fair opportunity to prove—before the trial court and now on appeal—that he was lawfully appointed and lawfully compensated. He failed to establish those specific points in court. As a result, the DOJ may and (in my opinion) should sue for return of illegal salary paid by the U.S. Treasury to Smith and his staff (that is, those not otherwise employed at DOJ). Special Counsel Smith failed to prove that the documents seized by the FBI at Mar-a-Lago belong to the U.S. government or any of its agencies. Trump should move, and if necessary sue, for return of all his files taken by the FBI at Mar-a-Lago.

Seth Barrett Tillman, ‘The Law of the Case (II) and the Next Steps,’ New Reform Club (Nov. 25, 2024, 15:13 PM), <https://reformclub.blogspot.com/2024/11/the-law-of-case-ii.html>; 

**Of course, the above assumes that the 11th Circuit dismisses, in short order, as requested by the Special Counsel. (Defendant Trump did not object to the Special Counsel’s motion to dismiss.)

Jack Smith’s Pending Eleventh Circuit Case Against President-Elect Trump: Why the Delay?

 

 

Jack Smith lost before Judge Cannon (United States District Court for the Southern District of Florida), and subsequently, Smith appealed Judge Cannon’s final order to the United States Court of Appeals for the Eleventh Circuit. Smith’s opening brief and Trump’s opposition brief, as well as amici supporting each side, were all filed before the November 5, 2024 presidential election. Smith’s reply brief was due November 15, 2024. Smith never filed that reply. Instead, he asked for an extension to file his reply and to reconsider his position in light of new circumstances. Smith requested an extension until Monday, December 2, 2024. The extension was granted.

Leaving aside whether or not the Special Counsel and his office should have been prepared to move forward in a timely manner in the event of either a Trump victory or loss in the election, one might ask: Why does Smith need nearly a full calendar month to figure out what his (and, implicitly, the DOJ’s) position is?

I have refrained from commenting on this issue for a variety of reasons. First, I have filed an amicus brief on the merits of this litigation, and it might look like overreach to speculate on the motives of the Special Counsel, particularly, when doing so in public and not in court filings. Second, I am not a DOJ alum, and I have no inside information about the conversations taking place among Smith and his subordinates, among the AG and his senior colleagues, and the conversations between Smith’s group and the AG’s group. But I have had some thoughts. And recently I came across a November 6, 2024 Lawfare episode in line with my own thinking. From Benjamin Wittes et al., ‘Lawfare Live: What Does a Second Trump Term Look Like?,’ Lawfare (Nov. 6, 2024, 10:27 AM) (at 2:05–4:03):

Scott R. Anderson: Our operational thesis, with the understanding that this is pretty unprecedented territory, and there is not a lot of hard law guiding it …. is that once you get to the point where you have somebody who is being criminally prosecuted or who has been convicted, and they become acting President and, in particular, perhaps, President-elect to some degree as well, all of a sudden you have a real conflict of legal principles between the federal government drive to the fact you need a functional and operational President, and nothing about being indicted or being charged or convicted in anyway disqualifies anyone from being President, in fact, probably, constitutionally, it cannot, except maybe, if it was tied to Section 3 of the 14th Amendment…. which none of the statutes he has been charged/prosecuted under have been are.

 

….

 

You have to reconcile this need to have a federal presidential principle that the President is operational and functional and that could be in tension with state law and with other principles like the administration of justice.

 

….

 

Essentially, that the state charges are the more complicated ones. The federal charges are likely to just go away. We are already seeing reports that Jack Smith and the Justice Department are working to find a way to wind down those charges. There is a complication in the [Eleventh Circuit] Mar-a-Lago case. As they [Smith and the DOJ] particularly don’t like the current ruling by Judge Cannon that gets right at the matter on the basis of [Defendants’] Appointments Clause argument relating to Jack Smith’s appointment. They don’t want to have precedent around that lingering around although district court opinions are not precedent. They don’t want to have a bad opinion about that loitering around. But they still want to have an orderly wind down of those cases because the Justice Department has a long-standing position that you cannot prosecute a sitting President. And that would be consistent with that.

Generally, I agree with Scott Anderson. Smith’s delay in filing his reply (or any other papers) may be caused by the fact that although DOJ wishes to make the Mar-a-Lago prosecution come to a close, the DOJ does not want Cannon’s opinion to remain good case law. Why is it good case law? Because, at this juncture, Cannon’s decision has not been vacated or reversed. That said: Anderson is clearly wrong in asserting that a federal district court opinion is not a precedent. Certainly, it is not a binding precedent. It is not even binding in the Southern District of Florida among other judges in that district. But it is a precedent, and it carries persuasive force based on how future judges find its reasoning sound. If Anderson were correct, if Cannon’s decision was not precedential at all, then the powers that be in DOJ would be unconcerned in leaving Cannon’s decision as it now stands.

 

Seth Barrett Tillman, ‘Jack Smith’s Pending Eleventh Circuit Case Against President-Elect Trump: Why the Delay?,’ New Reform Club (Nov. 21, 2024, 6:53 AM), <https://reformclub.blogspot.com/2024/11/jack-smiths-pending-eleventh-circuit.html>;