Bench Memos

Law & the Courts

First-Term Confirmations: Trump vs. Obama

Then president-elect Donald Trump and President Barack Obama arrive for Trump’s inauguration ceremony in Washington, D.C., January 20, 2017. (J. Scott Applewhite/Reuters)

The final six months of President Donald Trump’s first term has begun. One way to assess where the judicial confirmation process stands is to compare it to the process at this point during President Barack Obama’s first term.

Confirmations: The Senate has confirmed 200 of President Donald Trump’s nominations to life-tenured federal courts (23.3 percent of total judgeships), compared to 153 (17.8 percent) at this point in the Obama administration. While Trump’s confirmation total is higher by itself, it is lower as a percentage of the judicial nominations he has made, 78.4 percent vs. 83.2 percent. The gap is much wider for the U.S. Court of Appeals: Trump has appointed 53 judges (29.6 percent) compared to Obama’s 30 (16.8 percent).

Vacancies: The 73 current vacancy total compares favorably to the 75 vacancies that existed in July 2012, with two caveats. First, 58.3 percent of vacancies today have been designated “emergencies,” a category used by the Administrative Office of the U.S. Courts for longstanding vacancies that have a particularly negative effect on judicial caseloads. These vacancies have been open for an average of 932 days. This compares to a level of 38.7 percent in July 2012, when judicial emergency vacancies had been open for an average of 756 days.

Second, while the overall vacancy totals are comparable, the number of vacancies on the U.S. Court of Appeals is not. For the first time in decades, not a single current or known future appeals court vacancy exists in the United States, compared to twelve appeals court vacancies (16 percent) in July 2012.

One interesting difference between then and now: On June 20, 2012, the president of the American Bar Association sent a letter to the Senate majority and minority leaders to say that the 73 vacancies at that time were “dangerously high” and constituted a “vacancy crisis.” Even though the same number of vacancies exists today, the ABA does not appear similarly concerned.

Pending Nominations: Today, a total of 45 nominations to life-tenured federal courts are pending in the Senate, 33 in the Judiciary Committee, and twelve listed on the full Senate’s executive calendar. At this point in 2012, 13 nominations to the U.S. District Court and four to the U.S. Court of Appeals were listed on the executive calendar.

Cloture Votes: Democrats have forced the Senate to take a separate vote to invoke cloture, or end debate, on 155 of the 200 judicial nominations (77.5 percent) confirmed so far for Trump, compared to five cloture votes (3.3 percent) for Obama nominations confirmed at this point during his presidency. This difference is even more significant because filibusters could be used to defeat nominations during Obama’s first term since cloture required 60 votes. Since November 2013, however, cloture requires only a simple majority, which means forcing the Senate to take cloture votes can delay, but not defeat, nominations.

Opposition: Trump’s judicial nominations have received an average of 22 votes against confirmation, compared to an average of 4.8 votes against confirmation of Obama’s nominations. The pattern during the Obama administration was similar to the longer historical picture; the judicial nominations of President Teddy Roosevelt through Obama received an average of 0.8 votes against confirmation.

The top ten Senate opponents of Trump’s judicial nominations have voted against them an average 81.3 percent of the time, while the top ten opponents of Obama’s first-term judicial nominations voted against them just 9.6 percent of the time. Eighty-five percent of Senate Democrats have voted against more than half of Trump’s nominations, but no senator voted against more than 14 percent of Obama’s.

Looking Forward: In 2012, the Senate Judiciary Committee held hearings on judicial nominations until December 12, and the Senate was confirming them until four days before Christmas 2012. Even though the historic norms of the judicial confirmation process have all been radically disrupted (see this new Heritage Foundation report), judicial vacancies are their lowest level since Trump took office. Confirming the nominations already pending in the Senate would give Trump the second-highest confirmation total in a single presidential term and would strengthen the judiciary’s ability to play its designed role in our political system.

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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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