Bench Memos

Law & the Courts

Filling the Judicial Confirmation Stocking

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Under any circumstances, the judicial confirmation total this year is a monumental achievement.

The Senate has completed its confirmation work for the year and has a lot to show for the effort. With the final votes today, the Senate has confirmed 102 judges for the year, a significant achievement made more so by relentless Democratic resistance.

Let’s first put the confirmation results in some statistical perspective. From 1981 through last year, the Senate confirmed an average of 45 judges, or 5.5 percent of the judiciary, per year. This year’s total is more than twice the annual average and constitutes 11.9 percent of the judiciary. It’s the second-highest confirmation total in a single year in American history.

Those 102 confirmations include 20 to the U.S. Court of Appeals, the third-highest annual total in history. President Donald Trump has appointed 50 appeals court judges in his first three years, compared to 55 appointed by President Barack Obama — in eight years. And this is only the second time in American history that the Senate has confirmed double-digit appeals court nominations three years in a row. The only downside is that only one current appeals court vacancy exists anywhere in the country right now, the fewest in more than four decades.

Now let’s put the confirmation results in political perspective. No president has faced such strong, sustained confirmation headwinds in trying to fill judicial vacancies. One Democratic resistance tactic is to force the Senate to take a separate vote to invoke cloture, or end debate, before a final confirmation vote. When the cloture rule required 60 votes, senators who lacked the majority of votes to defeat a nomination outright could still prevent confirmation by preventing a confirmation vote. In November 2013, however, Democrats lowered that threshold to end debate from 60 votes to a simple majority — the same as for confirmation. Since then, cloture votes can only be used to delay, but not to defeat, nominations.

Democrats have used this tactic on 81 percent of Trump’s confirmed judicial nominations overall, 93 times this year alone. Compare that to just 4 percent during Obama’s first three years and an average of less than 2 percent for the same period under the previous five presidents. Democrats force these unnecessary cloture votes because they can, adding days to the time for confirming nominations, even those with no opposition.

Speaking of opposition, the average Democrat has voted against 48 percent of Trump judicial nominees. That means each Democrat, on average, has voted NO 82 times. Before you think this is ordinary partisanship, the average Republican voted against less than 10 percent of Obama nominees. In fact, since the turn of the 20th century, senators of one party voted against an average of 1.8 percent of judicial nominations by a president of the other party. What’s going on today is, by orders of magnitude, far beyond anything the confirmation process has ever seen.

Ten Senate Democrats serving today were in the Senate during the first three years (2001–03) of the previous Republican administration. This group includes Minority Leader Chuck Schumer (D., N.Y.), Minority Whip Dick Durbin (D., Ill.), and Judiciary Committee Ranking Member Dianne Feinstein (D., Calif.). They voted again an average of just three percent of Bush nominees, but have voted against an average of 51 percent of Trump nominees.

The 102 confirmations this year is eclipsed only by the 135 confirmed in 1979. It is a different confirmation world today. In October 1978, Congress created 150 new judgeships, the largest judiciary expansion in history. President Jimmy Carter’s party had a 58–41 Senate majority.

The confirmation train ran so smoothly that Judiciary Committee Chairman Ted Kennedy (D., Mass.) considered seven appeals court nominations in a single hearing and the Senate confirmed more than 20 judicial nominations on a single day at least twice in 1979. The Senate confirmed more than 97 percent of nominations without even a recorded vote and took no cloture votes. Not a single one.

That was then, this is Trump. He has appointed less than 5 percent of all life-tenured judges in American history, but those judges have received more than 48 percent of all opposition votes. Trump’s judges have received nearly three times as many no votes as all the judges confirmed in the entire 20th century combined. The average number of votes against confirmation of Trump’s judges is nearly 17 times higher than for the previous five presidents at this point.

You get the idea. Under any circumstances, the judicial confirmation total this year is a monumental achievement. Judicial vacancies have been cut nearly in half in 2019, allowing the judicial branch to more effectively do its work. This could have happened, however, only with leadership that is more relentless than the resistance.

Editor’s Note: This post has been emended to note that Trump appointees have received more than 48 percent, not 22 percent, of opposition votes.

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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