Bench Memos

Law & the Courts

The President Is Filling Judicial Vacancies against Strong Confirmation Headwinds

U.S. President Donald Trump delivers remarks at the White House in Washington, D.C., November 15, 2019. (Tom Brenner/Reuters)

The Senate today confirmed the nomination of Barbara Lagoa to the U.S. Court of Appeals for the Eleventh Circuit. President Donald Trump has appointed 48 appeals court judges, more than any president at this point of his presidency.

Trump has now appointed 26.8 percent of the judges sitting on the U.S. Court of Appeals, a larger share than any president since Jimmy Carter (39.1 percent).

The number of confirmations, however, do not tell the whole story. The real story about the judicial confirmation process since Trump took office is the sustained, organized resistance working against filling judicial vacancies.

Let’s compare the last three years to the same period during every presidential administration since Franklin D. Roosevelt first took office. Before 2017, the Senate took a recorded vote when confirming only 14.6 of judicial nominees, compared to 79.2 percent under President Trump.

An even more dramatic difference is that, from Roosevelt through Obama, only 3.7 percent of confirmed judicial nominees had any opposition at all, even a single negative vote. That has skyrocketed to 71.3 percent for Trump nominees.

The average number of votes against confirmation of Trump’s judicial nominees is 38 TIMES higher than the average for his 11 predecessors. Trump’s 164 confirmed judicial nominees have received as many votes against confirmation as the previous 2284 confirmed judicial nominees combined.

In addition, Democrats have forced the Senate to take a separate vote to end debate on 121 Trump nominees, compared to only three at this point under either Obama or President George W. Bush. This step can add days to the time required to confirm even nominees with no opposition at all.

This additional information puts the final confirmation total in a little better context. There has been a huge number of federal judicial vacancies across the country, and Senate Democrats have been doing their best to keep them from being filled.

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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