Bench Memos

Law & the Courts

The Judicial-Confirmation Process Is Much Different Today under President Trump

President Donald Trump talks to reporters in Washington, D.C., March 8, 2019. (Jonathan Ernst/REUTERS)

The Senate yesterday confirmed Neomi Rao to the U.S. Court of Appeals for the D.C. Circuit. She’s exactly the kind of impartial judge that we need across the judiciary. That makes 91 judges overall, and 36 to the federal appeals court, since President Donald Trump took office.

Whatever those numbers mean on their own, the fact is that Trump’s judicial nominees are being treated very differently than those of previous presidents.

Those 91 judges, for example, have received a total of 1,824 votes against their confirmation in 782 days. When Barack Obama was president, it took 2,123 days to rack up this many negative votes, and he had to appoint 282 judges to do it.

Trump’s 91 judges have received more negative confirmation votes than the 2,653 judges confirmed to the same courts during the entire 20th century combined.

Let’s look at this another way. Obama appointed 16 judges to the U.S. Court of Appeals during his first two years, when his own party controlled the Senate. Each of those nominees had a confirmation vote, and only two also had a separate vote to invoke cloture, or end debate.

With 41 Republicans in the Senate, that’s a total of 738 opportunities on the Senate floor for a Republican to vote for an Obama nominee. Republicans took 556 of those opportunities, or 75 percent.

Trump had appointed 16 judges to the U.S. Court of Appeals by May 2018, when his own party controlled the Senate. Each of those nominees had a confirmation, and all 16 also had a separate cloture vote. With 48 Democrats in the Senate in 2017 and 49 in 2018, that’s a total of 1,544 opportunities for a Democrat to vote for a Trump nominee. Democrats took 259 of those opportunities, or 17 percent. Not even close.

You might think that, well, Obama’s nominees must have been more qualified than Trump’s. Not according to the American Bar Association. Nine of each president’s nominees received a unanimous well qualified rating, but five other Trump nominees received at least a majority well qualified rating, compared to just one Obama nominee. Since several studies (hereherehere, and here) have found that the ABA is systematically biased against Republican nominees, that really puts Trump’s nominees ahead.

Shifting from the votes that nominees receive to the votes that senators cast, the average Democrat has voted against 36 of the 91 judges Trump has appointed so far. This compares to the average Republican voting against six of the first 91 judges Obama appointed.

No matter how you slice or dice it, no matter what measure or standard you use, the judicial confirmation process today is radically different than it was just a few years ago.

Thomas Jipping — 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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