Bench Memos

Law & the Courts

A Democrat Voting for a Republican Nominee Shouldn’t be Big News

A recent headline read: “Kyrsten Sinema Votes Yes on Two More Trump-Appointed Judges.” You know the confirmation process is a partisan mess when a senator voting for a nominee of the other party is news worth a headline.

These two judges were appointed to the U.S. District Court. Between 1789 and 2016 — from President George Washington to President Barack Obama — the Senate confirmed nearly 3,000 judges to this court and only 4 percent received even a single vote against confirmation. For more than two centuries, no matter which party was in the White House or controlled the Senate, every senator supported nearly every district-court nominee.

By comparison, 49 percent of President Donald Trump’s nominees to the U.S. District Court have received votes against confirmation.

The U.S. District Court judges appointed by Presidents John F. Kennedy to Obama receive an average of less than one negative confirmation vote, compared to 15 for Trump’s district-court nominees. And opposition to Trump’s judicial nominees has been increasing since he took office. His district-court nominees received an average of eight negative votes during his first two years, but that has jumped to an average of 38 negative votes this year.

The point here is that a Democrat like Sinema voting for a Republican judicial nominee, especially to the U.S. District Court, was the almost universal norm until Trump took office barely two years ago. Even then, however, Sinema has voted against six district-court nominees in the five months since she took office. It took the three longest-serving Democrats in Senate history — Robert Byrd (W.Va.), Daniel Inouye (Hawaii), and Edward Kennedy (Mass.) — a total of 148 years in the Senate to do that.

Senate Democrats today are departing radically from how the Senate has handled judicial nominees since America’s founding. They are using Trump’s nominees as proxies for Trump himself, and have turned the confirmation process into simply another front in their war against the president.

Thomas Jipping is the deputy director of the Edwin Meese III Center for Legal and Judicial Studies and a senior legal fellow at the Heritage Foundation.

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