With 229 judges confirmed and counting, including three Supreme Court justices and 53 circuit court judges, President Donald Trump and Senate majority leader Mitch McConnell have been cementing an impressive legacy. The federal courts at both the trial and appellate levels have been given a jolt of constitutionalism and respect for the rule of law that will inure to the country’s benefit for years to come.
But getting there has been no easy ride. Far from it. I have previously discussed the toxic, hyper-partisan landscape for judicial nominations, to which McConnell’s Democratic counterpart, Senate minority leader Chuck Schumer, has contributed so much over the span of a generation.
My Judicial Crisis Network colleague Frank Scaturro recently analyzed that landscape, a product of the politicization of the courts, before and during the Trump administration. The key takeaway is that throughout the past four years, Trump and McConnell faced a new level of obstruction by Democratic senators who used every means at their disposal to stymie judicial nominations.
- Filibustering Judges: Democrats began with their favorite tactic going back to the second Bush administration — the filibuster — in a failed effort to defeat Trump’s first Supreme Court pick, Neil Gorsuch. It did not work, thanks in part to the Democrats’ own successful efforts when they were in the majority in 2013 to end the filibuster for all nominations except for the Supreme Court. That left them with no argument against McConnell and his fellow Republicans extending that principle to the high court. So cloture, which ends debate and allows a floor vote to proceed, could now be attained with a simple majority of those voting.
- Weaponizing the Cloture Process to Create Delay: Since the passage of a cloture motion did not translate into an immediate confirmation vote, but began a 30-hour clock for consideration before the vote would take place, the Democrats seized on cloture as a time-wasting tactic that they would wage indiscriminately, even for uncontroversial nominees. McConnell managed a vote last year to cut district court nominees’ 30-hour post-cloture clock to two hours to blunt this weapon.
- Historic Numbers of Cloture Votes: Between the Truman administration (when cloture motions were first possible on nominations) and the Obama administration, there were a total of 136 cloture votes on judicial nominees. Trump’s judicial nominees surpass that total, with 193 cloture votes so far. Many of these votes were taken on nominees who enjoyed support from most or all Democratic senators, including eight district-court nominees who had previously been nominated by Obama.
- Forcing Cloture for Republican Supreme Court Nominees: All three Trump nominees to the Supreme Court have been subjected to cloture votes, as had another sitting Republican-appointed justice, Samuel Alito. That makes four of six Republican-appointed justices on the Court. None of their four current or recent colleagues appointed by Democrats Bill Clinton and Barack Obama were subjected to a cloture vote.
- Deploying Smear Campaigns: Brett Kavanaugh’s epic mistreatment compares only to that of Clarence Thomas in personal viciousness and abuse of the judicial nomination process.
- Partisan Opposition to Outstanding Nominees: The next justice, Amy Coney Barrett, was the first nominee to the Supreme Court to be confirmed in over 150 years without a single vote from a major minority party, despite her widely-recognized brilliance and legal accomplishment at the highest levels.
- Hyperpartisan Voting Patterns: Even for lower courts, the bipartisanship that traditionally accompanied judicial nominations was replaced by so much Democratic opposition that more Trump nominees were confirmed with over 30 percent “no” votes than judges nominated by all prior administrations combined, according to the Heritage Foundation.
- Blue-Slip Abuse: Senate Democrats have weaponized the blue-slip tradition by which home-state senators’ views about nominees are solicited by the Judiciary Committee’s chairman. Committee chairmen Chuck Grassley and Lindsey Graham refused to allow this tactic to stand in the way of confirming circuit nominees, but it has done considerable damage on the district-court level, where a number of seats in states represented by Democratic senators remain vacant.