Bench Memos

Law & the Courts

Last Year in Judicial Appointments

In this post a year ago, I posed and addressed the “four big questions” on judicial appointments for 2019. Let’s revisit them:

1. “Will another Supreme Court vacancy arise?”

The doubts that I (and lots of other folks) had on this prospect proved to be warranted.

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

Kudos to White House counsel Pat Cipollone and his team—especially deputy White House counsel Kate Todd—for a very smooth transition. Ditto to new Senate Judiciary Committee chairman Lindsey Graham and his staff.

The numbers tell part of the story of success: 20 federal appellate judges and 80 federal district judges confirmed. The remarkably high caliber of so many of the confirmed judges tells the rest of the story.

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

Only seven new vacancies (current or future) on the federal appellate courts arose or were announced during 2019. Six of those were promptly filled in 2019, and the nomination to the seventh (Andrew Brasher to the Eleventh Circuit to succeed Edward Carnes) will likely be confirmed this month.

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

Senate Democrats had been obstructing confirmation of judicial nominees by threatening thirty hours of post-cloture debate on nearly every nominee. As I put it, “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.”

I’m pleased to say that’s exactly the course that was taken. No federal district nominees were confirmed during the first three months of 2019. At the beginning of April, majority leader Mitch McConnell led the successful effort to adopt a rule reducing the (never or rarely used) hours of post-cloture debate on district-court nominees (and most executive-branch nominees) from thirty to two. As a result, 80 federal district judges were confirmed in the last nine months of 2019, compared to only 53 during the first two years of Donald Trump’s presidency.

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