Bench Memos

Law & the Courts

Judicial Appointments in 2019: Four Big Questions

1. Will another Supreme Court vacancy arise?

I would put the chances of a voluntary retirement in 2019 at near zero. But as Justice Scalia’s death reminds us, vacancies can arise when you’re not expecting them.

If a vacancy does arise, the Republican margin of 53 to 47 in the Senate would give President Trump plenty of leeway to get an outstanding nominee confirmed.

2. How smoothly will key new personnel in the White House and Senate step into their roles?

Over the past two years, White House counsel Don McGahn had a huge role in advising President Trump which judicial candidates to nominate, and Senate Judiciary Committee chairman Chuck Grassley shepherded the nominees through the committee process. McGahn and Grassley both built outstanding teams of lawyers to assist them.

Pat Cipollone has now replaced McGahn as White House counsel, and Lindsey Graham is the new chairman of the Judiciary Committee. Both are quickly building their own teams of lawyers, but it will be a huge challenge for them to hit the ground running. With all the demands that House Democrats will be making of the White House, Cipollone will have the additional challenge of ensuring that judicial nominations receive the attention they deserve.

3. Will many new vacancies open up on the federal appellate courts?

Once they are renominated, there are seven federal appellate nominations that should promptly be reported out of committee, and another five on which hearings should be held very soon. But beyond those twelve nominations, there are currently only three other federal appellate vacancies.

Whether many other vacancies arise soon depends heavily on how many of the 27 or so pension-eligible Republican appointees decide to take senior status (or retire altogether).

4. Will the Senate ensure timely floor votes on federal district nominees?

In the face of Democrats’ time-consuming insistence on cloture votes on nearly all judicial nominees, Senate majority leader Mitch McConnell has wisely given priority to appellate nominees over district nominees. As a result, there were some thirty district nominees long languishing on the Senate floor at the end of 2018.

To repeat myself from earlier today (point 3 here): One way, and probably the only way, to break the blockage is to reduce the period of post-cloture debate on district-court nominees from thirty hours to two hours.

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