Trump’s federal judge pace matches recent presidents — but with a big twist – By John T. Bennett (Roll Call) / May 8 2019
Incumbent has stressed putting conservatives in legal realm’s ‘big leagues,’ expert says
In what the White House, Republican senators and right-leaning organizations hailed as a major milestone, President Donald Trump last week saw his 100th judicial nominee confirmed by the Senate.
But his record of getting federal judges confirmed is largely in line with his most recent predecessors, even if he’s been more successful in elevating nominees to the influential appellate courts.
Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, called Trump’s century mark “a big win for the country,” praising his picks as “judges who fairly apply the law and adhere to the Constitution.”
Yet two recent presidents got there first, hitting 100 judicial confirmations within 24 months. It took Trump 28 months.
Comparing records
According to the Administrative Office of the U.S. Courts, going back to Jimmy Carter, no other chief executive had as much judicial success — in terms of quantity — in his first two years in office as Bill Clinton.
The Democrat put 126 judges on U.S. district and circuit courts during the 1993-94 session, plus two Supreme Court justices (Ruth Bader Ginsburg and Stephen G. Breyer). Democrats controlled the Senate for Clinton’s first two years.
Then there was Republican George W. Bush, who put 100 district and circuit jurists on federal benches during his first two years in 2001 and 2002. (He bested that count by three during the next two years.) He didn’t put a justice on the high court until the start of his second term. His party controlled the Senate for the initial few months of his first term before a party switch flipped the chamber to the Democrats. Republicans were back in charge for the latter two years of his first term.
Other recent presidents tallied more traditional records. Ronald Reagan had 87 of his district and circuit judges confirmed in his first two years, beating Trump’s 83. Like Trump, Reagan had his own Republican Party in control of the Senate during that time.
Republican George H.W. Bush seated only 70 judges in his first two years, facing a Democratic Senate. Democrats Barack Obama and Carter had the slowest starts, putting 60 jurists on the bench in their first two years with their party in control of the chamber.
Like Trump, Carter, Reagan, the elder Bush and Obama crossed 100 circuit and district confirmations in the two years following their first midterm elections.
The Trump factor
But experts see one major difference between the real estate mogul-turned-reality television star-turned commander in chief and his most recent predecessors.
“To use a baseball analogy, you can’t just look at how many players did a team sign, right? There’s such a big difference between signing a player to the big leagues and signing someone to a Single A contract,” said Mark Carl Rom, a Georgetown University government and public policy professor.
“The big leagues in the judicial system means the Supreme Court and the appellate courts. There’s no question that President Trump has been incredibly effective at putting people on the appellate courts — in fact, he’s gotten more than twice as many appeals court judges than most of the other presidents,” Rom said.
Russell Wheeler of the Brookings Institution noted that the White House and conservative groups have been “appointing courts of appeals judges with bulldozer efficiency.”
Only the 3rd U.S. Circuit Court of Appeals has flipped from a Democrat-appointed majority to a Republican one during Trump’s tenure, but “the Trump circuit appointments have strengthened Republican-appointee majorities on four courts that already had such majorities — those of the 5th, 6th, 7th, and 8th circuits,” according to Wheeler.
During his first two years in office, Trump put 30 circuit court judges on those benches, besting Bush Sr. by eight jurists. Reagan and Clinton got 19, the younger Bush 17, Obama 16 and Carter 12.
The current Senate, so far, has confirmed seven more appellate judges since January. Joseph Bianco, a federal district court judge and former prosecutor, will likely be No. 8 — the Senate voted, 50-41, on Monday to end debate on his nomination for a seat on 2nd Circuit, setting up for Wednesday an all-but-likely confirmation floor vote. Not counting Bianco, there are currently seven other vacancies at the appellate court level, with four other nominations to fill those slots pending in the Senate.
If all of those vacancies are filled by the end of the current Congress, that would give Trump 45 appellate court confirmations, which would be a high-water mark for the recent era. Only two other presidents got over 40 such confirmations during their first four years: Carter with 44 and the elder Bush with 42. (Both lost their re-election bids.)
The Senate has also confirmed 10 more district court jurists since January. There are 121 district court vacancies, with 48 nominations pending in the Senate.
The Obama drop
One likely factor in Trump’s judicial success in his first two years was the number of vacancies that existed when he took office.
Data compiled by the Congressional Research Service shows that confirmations took a nuclear crater-sized dip during his predecessor’s second term.
Obama went from 23 confirmed circuit court jurists in 2013-2014 to just two in 2015-2016. His district court confirmations also fell from 132 during that first period to just 20 in the following two years.
Senate Republicans chose to slow-roll Obama’s nominees, prompting then-Majority Leader Harry Reid in 2013 and his fellow Democrats to get rid of the supermajority requirement for limiting debate on most picks, including most federal judges. That led to a flurry of confirmations by the Democratic Senate in those first two years of Obama’s second term.
Things changed after the 2014 elections, when Republicans won back the chamber and virtually halted processing Obama’s court nominees. At the end of Obama’s term, in 2017, there were 17 circuit court vacancies, with seven nominees pending, and 86 district court vacancies, with 44 nominees pending.
Having so many vacancies to fill gave Republican Majority Leader Mitch McConnell and the White House more opportunities to pump up Trump’s confirmation rate in his first two years.
In 2017, McConnell went further than Reid in instituting another partisan rule change. This one did away with the filibuster for Supreme Court nominees, ensuring Neil M. Gorsuch would be confirmed — and Brett M. Kavanaugh a year later. And this year he limited the number of hours of post-cloture debate on district court nominees, a move that further greases the skids for more confirmations.
Notably, 15 of Trump’s confirmed nominees were once nominated by Obama, according to a Senate Judiciary Committee aide. (A 16th, tax court judge Elizabeth Copeland, had her nomination handled by the Finance Committee, the aide noted.)
Another change in Senate operations during Trump’s presidency has been the weakening of the “blue slip” process, which allowed home-state senators to essentially sink a nomination if they did not signal their support. Obama and previous presidents were loath to choose nominees who would not pass muster with home-state senators.
McConnell has said that Democratic opposition won’t slow Trump nominees, a sentiment echoed by Senate Judiciary Chairman Lindsey Graham of South Carolina.
Georgetown’s Rom doesn’t expect doing away with the blue slip process to make a huge difference, but he said it will “allow the majority of the Senate to approve judges more quickly.”
“They’re going to try to put as many judges through that process as possible … and being able to ignore the home-state senators gives them a little bit of an edge,” he said.
But Wheeler of the Brookings Institution sees reasons to doubt whether Trump can keep up the current pace on circuit court nominees.
“Democratic appointees seem unlikely to create many vacancies voluntarily,” he said. “Republican appointees may leave active status, but not at the pace of the last two years, limiting Trump’s ability to continue staffing the appellate courts with highly conservative appointees.”
