The Importance of Seating the Federal Judiciary Nominees

The Supreme Court tends to get most of the attention when judiciary vacancies occur for good reason as the highest court in the land. However, one must not neglect the vacancies that arise at the federal circuit level. Many of the hot-button cases that are heard and decided at the circuit level have a good chance to be heard at the Supreme Court. Some examples in the modern day include the Obamacare Litigation, Same-Sex Marriage, Second Amendment, Affirmative Action and the Travel Ban litigation.

The judges at the circuit court level help set the course for the Supreme Court to review the matter. For example, Judge, now Justice Gorsuch heard the Hobby Lobby case while still a circuit judge on the 10th Circuit Court of Appeals. He provided a persuasive Neil Gorsuchconcurrence on the importance of recognizing the right of individuals in regards to religious freedom.[1]    During his hearings, this view drew the attention from both sides of the aisle.

Furthermore, in addition to considering the content of the law produced at the circuit level, these courts are also typically viewed as “feeder courts”  for future Supreme Court appointees. Eight of the Nine current Supreme Court justices have sat at some point in their career at the circuit level. The President had the opportunity to make several appointments in recent months and according to Mitch McConnell , the senate will proceed with the nomination votes this week for some of them.

It is a considerable list of names, but one I would like to highlight as perhaps being among consideration for the Supreme Court one day is Notre Dame Law Professor Amy Barrett.  She was appointed to fill a vacancy on the Seventh Circuit.

Amy Barrett has become well-known because she came under intense scrutiny and unfair questioning by several politicians at her hearings.  It was premised on her Catholic faith and how that would impact her decision-making on the bench.  She had an accomplished career that included clerking for the late great Justice Scalia and practicing at several high-profile firms before becoming a law professor at Notre Dame. Her views on a more flexible approach to Stare Decisis doctrine would be a welcome addition to the Supreme Court one day.[2]  I encourage you to review her writings and continue to become familiar with her philosophy and dedication to originalism. It is not outside the realm of possibility that one day she may be considered to replace a retiring Ruth Bader Ginsburg.  At the federal circuit level, she will be given a great opportunity to showcase her abilities. It is a career worth following and could lead to a position at the highest court one day in the steps of her former boss, Justice Scalia.

Overall, this should be an exciting week for Constitutionalists as the high-profile nomination votes begin to occur. The process of returning the nation to Constitutionalist principles starts on the federal bench. No matter the administration or philosophy in power, the federal circuit courts provide a check to the other branches of government. Many of the important cases decided there and the judges who hear cases at that level may one day find themselves on the Supreme Court.

[1] And as we have seen, it is not for secular courts to rewrite the religious complaint of a faithful adherent, or to decide whether a religious teaching about complicity imposes “too much” moral disapproval on those only “indirectly” assisting wrongful conduct. Whether an act of complicity is or isn’t “too attenuated” from the underlying wrong is sometimes itself a matter of faith we must respect”
Hobby Lobby Stores, Inc. v Sebelius, 723 F3d 1114, 1153–54 [10th Cir 2013], affd sub nom. Burwell v Hobby Lobby Stores, Inc., 134 S Ct 2751, 189 L Ed 2d 675 [2014].


[2]Amy Barrett, Precedent and Judicial Disagreement, Texas L. Rev. Vol. 91. No. 7. (2013).