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July 6, 2020

The most lasting legacy of the Trump Administration – and of Senator Majority Leader Mitch McConnell – will be the confirmation of conservatives to the federal courts. These new judges, mostly young, are lifetime appointees and will have an impact on the judiciary for generations.

As of June 25, 200 Trump-nominated judges (of 870 total federal judges) have been confirmed, including

  • 2 Supreme Court Justice
  • 53 Circuit Court of Appeals judges
  • 143 District Court judges
  • 2 Court of International Trade judges

By way of comparison, at the same date in the 4th year of their presidencies, none of the last 5 presidents have placed as many judges on the bench. Even more significant, Leader McConnell has made the confirmation of nominees to the critical circuit courts of appeals a top priority, and there the Trump/McConnell legacy is even more notable. The Senate has confirmed 53 Trump nominees to the appellate bench, far outnumbering the confirmations of the nominees of Obama (21), Bush 43 (29), Clinton (27), Bush 41 (28) and Reagan (22).

And this story isn’t over. There are currently 79 vacancies on the federal bench – although as of this date there are no vacancies on the circuit court. Before the end of 2020, another 5 vacancies are expected.

The importance to business of putting strict constructionists on the bench, especially on the circuit courts of appeals, shouldn’t be underestimated. For example, the 9th Circuit Court of Appeals – dominated of course by California – has long been viewed as the most liberal and activist circuit. But on October 2nd the 9th Circuit ruled in favor of McDonalds in a joint employer case.

At the end of the Obama Administration, Democrat-appointed judges on the 9th Circuit outnumbered Republican-named judges by 15:  22 to 7.  As of December 2019, there were just 16 Democrat-appointed judges to 13 GOP-named jurists, 6 of them appointed by President Trump.  And the same shift in numbers is taking place in other circuits as well.

But there’s a back story that also needs to be told. The U.S. Senate has historically treated judicial nominations differently than legislation. While debate on the merits of a nominee was always appropriate, deliberate obstruction – filibusters – of judicial nominees was extremely rare. A cloture vote – a vote to end a filibuster and allow a vote on confirmation – was rarely needed.

With the election of Donald Trump, that traditional treatment of judicial nominees was abandoned, and the Senate’s Democratic minority filibustered the confirmations of almost all judicial nominees.

Frustrated by the obstruction, Senate GOP Leader McConnell initiated a rules change that reduced the time allowed for debate on a nominee after cloture was invoked from 30 hours to 2 hours, greatly speeding up what had been a glacially slow confirmation process. (The Democratic Senate majority changed the rules in 2013, reducing the vote necessary to invoke cloture from 60 to 51.)

Despite the certain confirmations of virtually all the nominees, the Democratic obstruction has continued, and Leader McConnell has had to file cloture on almost all nominees before a confirmation vote could be taken. This is obstruction for its own sake, since the cloture votes are only rarely close and serve only to waste hours of Senate time. For example, on one day in December, 11 district court judges were confirmed, but a cloture vote had been required on each.  Only one of the votes was even close: 51 to 42.  On 7 of the votes, more than 80 of the 100 Senators voted for cloture.

A look at the history of Senate cloture votes on judicial nominations makes clear the level of the current obstruction:

There have been 155 cloture votes on Trump judicial nominees–on 77% of  his nominees. The total number of cloture votes on the judicial nominees of Presidents Obama, George Bush, Bill Clinton, George H.W. Bush, and Ronald Reagan was seven, combined.  The largest percentage of previous nominees on which cloture was voted:  2.4% on Obama nominees.