Bench Memos

Law & the Courts

Is This the “New Normal” for the Confirmation Process?

(Photo: Photographerlondon/Dreamstime)

“The new normal” refers to a new standard or baseline expectation. Now, 30 months after Donald Trump entered the Oval Office, the Senate’s new normal for considering judicial nominations seems to be raw, partisan politics that all but ignores the qualifications of nominees.

How partisan is it? The average Democratic senator has now voted against 48 percent of Trump’s judicial nominees. And no Democrat has voted against fewer than 26 percent of the nominees.

This unprecedented opposition has nothing to do with the nominees’ qualifications. Compared to nominees presented by Barack Obama, George W. Bush, or Bill Clinton, Trump’s nominees have received comparable or higher ratings from the American Bar Association. The ABA is a useful source here for two reasons. First, Democrats have often said that ABA ratings are the “gold standard” for evaluating judicial nominees. Second, at least four studies (here, here, here, and here) have shown systematic ABA bias against Republican nominees.

Partisan opposition to Trump judicial nominees may be standard confirmation procedure today, but it’s far from normal. Go back as far as you want. During the first 30 months of the previous six presidents, the average senator of the other party voted against only three percent of judicial nominees. Add another Republican and another Democrat – all the way back to President John F. Kennedy – and the average drops even further.

Democratic opposition to Trump’s judicial nominees today, therefore, is more than 16 times what it was in the past. If that’s not abnormal, I don’t know what is.

The only thing that does explain this confirmation transformation is the identity of the president making these nominations. Senate Democrats – not individual senators, but the entire Democratic Caucus – have decided to treat Trump’s judicial nominees as proxies for Trump himself. They have turned the confirmation process into another front in their war against Trump.

This new battle plan rejects how America’s founders designed the judicial appointment process. The Constitution gives the power to appoint judges to the president, not to the Senate. America’s founders designed the Senate’s role of “advice and consent” to be, as Alexander Hamilton wrote, a “silent operation,” an “excellent check” that would “tend greatly to prevent the appointment of unfit characters.”

Through nearly all of American history, only a small number of “unfit characters” were nominated, and their unfitness was evident from their qualifications and record. For most Democrats today, “unfit characters” are a large group, defined not by their qualifications but by one common factor: they were nominated by President Donald Trump. Period. This is certainly new, but it is not normal by any measure.

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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