While the impeachment theatrics garnered most of the headlines in recent months, the Senate has been busy confirming judges to the nation’s federal courts. The most high profile confirmation hearings during the past three years have obviously been for Trump’s two Supreme Court nominees, Brett Kavanaugh and Neil Gorsuch. However, Trump has been even more busy at the federal district court and circuit court levels.
In December, the Senate confirmed 2 additional judges to federal circuit courts (in this case both to the 9th Circuit): Patrick Bumatay and Lawrence VanDyke. The Senate also confirmed 21 judges to Federal district courts. The confirmations bring Trump’s total federal judges confirmed to 50 at the federal circuit court level and 133 at the district court level. For comparison, after three years, Obama had 24 circuit court appointments, Bush II had 30, Clinton had 27, Bush I had 30 and Reagan had 23. Thus, in three years, Trump has appointed almost as many judges to the federal circuit court as Obama appointed in 8 years (Obama appointed 55).
How has Trump done it? The architect of the judicial transformation is Senate majority leader Mitch McConnell. After regaining the Senate majority after the November 2014 elections, McConnell slowed down the Obama judicial nominee confirmations. In the final two years of the Obama administration, McConnell decided not to have a confirmation vote on Obama’s nominee Merrick Garland to replace Justice Scalia. The Senate also only confirmed 2 federal circuit court nominees and 18 district court in 2015-2016, whereas in the prior 6 years Obama had confirmed 53 circuit court nominees and 250 district court nominees. By slowing down the confirmation process, McConnell allowed Trump to enter office with a large number of vacancies, including the vacancy to replace Scalia. The Democrats had also abolished the filibuster for judicial nominations when they controlled the Senate, allowing McConnell to get many Trump nominees approved on party line votes. For example, the last two federal circuit court nominees were approved by 53 and 51 votes respectively.
Trump has taken a personal interest in transforming the judiciary. In November, the White House celebrated its progress at an event in the White House. Trump stated, “It is up to us to reclaim our heritage of equal and impartial justice. It is up to us to re-dedicate ourselves to the traditions and wisdom of our Founders.” The White House went on to say that “this work is especially important due the left-wing’s push to throw away legal precedent and to abandon the Constitution in order to impose its own radical agenda.” The White House also noted that “the average age of circuit judges appointed by President Trump is less than 50 years old – a full 10 years younger than the average age of President Obama’s circuit nominees.”
For selecting judges, Trump has leaned heavily on Vice President Pence, the White House Counsel’s office and the conservative / libertarian leaning Federalist Society. In a speech to the Federalist Society in 2017, Vice President Pence noted that Trump had promised during the election to appoint federal judges in the mold of Justices Thomas and Scalia. He then pledged to make good on this campaign promise saying, “My friends in the Federalist Society, we’re in the promise-keeping business in Washington, D.C. now.” By all accounts, Trump and Pence have with the help of Senate Majority Leader McConnell kept their promise and delivered beyond their supporters’ expectations.
In 2020, both the Presidency and control of the Senate will be in play. The results will have dramatic implications for control of our courts. In the meantime, Trump and McConnell are not taking anything for granted and are planning to make 2020 another record setting year for judicial confirmations. Whether Trump wins or not in 2020, he will have a long lasting legacy in the nation’s courts.
NewEnglandPolitics.com 