Bench Memos

Law & the Courts

As the Senate Recesses, Credit Due on Judicial Nominations

Senate Majority Leader Mitch McConnell speaks to reporters after the weekly policy lunch in Washington, D.C., May 14, 2019. (Kevin Lamarque/Reuters)

The Senate has adjourned for its August recess, but not before confirming 13 more district judges and two more judges to the Court of International Trade. That brings the total number of judges confirmed during the 116th Congress to 63, 13 to the courts of appeals and 50 to the district/specialty courts. The total number confirmed by the Senate since Inauguration Day is 148, broken down as follows:

Supreme Court: 2

Courts of Appeals: 43

District/Specialty Courts: 103

The 43 circuit court confirmations alone have set a record for circuit court confirmations at this point of a presidency, going back to the establishment of the regional circuit courts in 1891.

Moreover, majority leader Mitch McConnell and Senate Judiciary Committee chairmen Chuck Grassley and Lindsey Graham had to process judicial nominations in the face of unprecedented obstruction. Senate Democrats weaponized Senate procedure, abusing the blue slip tradition and indiscriminately forcing cloture votes on even the least controversial nominees in order to gum up the works. They forced over ten times more cloture votes on Trump judicial nominees than were taken on nominees of the previous five presidents combined at this point in their respective administrations. With each cloture vote came the rule that required 30 hours of debate before a confirmation vote, which in practice meant gratuitous delay instead of actual debate.

Instead of flinching, President Trump continued to nominate qualified constitutionalists, and McConnell fought to change the 30-hour rule in early April so that district nominees would be subject to two hours of post-cloture debate. This made a tremendous difference in filling the mounting number of district court vacancies. Indeed, all 50 of the lower court confirmations in this Congress occurred after that rule change.

With 117 district/specialty court vacancies remaining, there will be a considerable amount of work ahead when the Senate reconvenes in September. But Trump, McConnell, Grassley, and Graham should be applauded for keeping their promises and accomplishing what they have on judges over the last two and a half years. Their efforts have brought the nation’s appellate courts an unprecedented number of judges who believe in adhering to the Constitution according to its text and its original meaning, not in molding the law to fit their policy preferences.

Contrast this with the orthodoxy of the Democratic party, which for a long time has embraced the notion that unelected judges should use the courts to impose their policy agenda. The candidates vying for that party’s presidential nomination refuse to disclose their lists of potential Supreme Court nominees, in contrast to the example set by Trump when he was a candidate. Notice also that when they have appeared before the American people in primary debates, they have not faced a single question about judges. Maybe that is strangely fitting, given the wholly undemocratic enterprise of bypassing the people’s elected representatives and imposing policy by judicial fiat.

On the Republican side of the aisle, there are no secrets and every reason to openly and expeditiously continue to confirm judges whose philosophy respects representative democracy and the Constitution it produced.


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