Bench Memos

Law & the Courts

On Confirmations of District Judges

Lots of attention has properly been paid to President Trump’s remarkable record of achievement on federal appellate nominations. Over the course of three years, Trump has now had 50 appellate nominees confirmed. That compares very favorably to President Obama’s total of 55 over his eight years in office. Plus, Trump’s appellate nominees have, overall, been of a remarkably high caliber. Even Ian Millhiser, an outspoken critic of judicial conservatism, acknowledges in this interesting Vox article that Trump has “identif[ied] many of the most talented conservative stalwarts in the entire legal profession to place on the bench” and that “based solely on objective legal credentials, the average Trump [appellate] appointee has a far more impressive résumé than any past president’s [appellate] nominees.”

That said, I’ll offer a few quick observations here on district-court nominations:

1. One critical fact to keep in mind on district-court nominations is that the Senate Judiciary Committee’s blue-slip policy remains in full force on those nominations. That means that home-state senators have an effective veto over district-court nominees. So in “blue states” (which I will define here to mean states with two Democratic senators) and in “purple states” (states with one Democratic senator), the White House has to strike deals with Democratic senators if it wants to get district-court nominees confirmed. That’s why you’ll find examples of Trump’s district-court nominees who are essentially the picks of home-state Democratic senators.

2. The Senate has confirmed 120 of Trump’s district-judge nominees. (President Obama had 97 confirmed in his first three years.) More than half—67—of those confirmations have occurred over the past eight months, in the aftermath of the Senate’s adoption of a rule limiting the (never or rarely used) hours of post-cloture debate on district-court nominations.

There are currently 18 district-court nominations awaiting action on the Senate floor. Of the 18, 13 are from blue or purple states (and have thus already cleared the blue-slip hurdle), so you’d think that there would be a deal to get most or all confirmed before the Senate recesses for the year (probably at the end of next week). But we’ll see.

There are 7 district-court nominees who will soon be reported out of committee and 17 more who await their committee hearing.

3. There are some 50 or so district-court vacancies (both for current vacancies and declared future vacancies) for which there are not nominations. That includes, for example, six vacancies in the District of New Jersey, two of which date back to early 2015.

On longstanding vacancies on which the White House and home-state Democratic senators haven’t yet been able to strike a deal, it seems unlikely that they will be able to do so before the 2020 elections.

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