Bench Memos

Law & the Courts

This is the Brave New World of Confirmation Opposition

President Donald Trump speaks to the media before departing the White House in Washington, D.C., July 24, 2019. (Mary F. Calvert/Reuters)

President Donald Trump is making his mark on the federal judiciary. He’s appointed 17 percent of the life-tenured federal judiciary, above the average of 15 percent for the previous five presidents at this point. Trump’s 24 percent share of the U.S. Court of Appeals is way ahead of the 13.6 percent average.

This is progress, but the process will remain a slog for the foreseeable future.

The Heritage Foundation’s Judicial Appointment Tracker shows, for example, that the Senate has been forced to take a separate vote to invoke cloture, or end debate, 97 times since Trump took office. That’s 14 times as many as in the same period during the previous nine presidential administrations — wait for it — combined! Read that last sentence again if it hasn’t yet sunk in.

Only slightly less disconcerting, yet just as true, is Senate Democrats’ campaign of opposition to Trump’s judicial nominees. It’s tempting to think that winning matters, not the margin of victory. But this signals a radical transformation not only in how the confirmation process works day-to-day, but in the Senate’s role in the broader appointment process.

The Constitution, after all, gives the power to appoint judges to the president, not to the Senate. In the past, reflecting its role as a check on that power, the Senate focused on individual nominees’ qualifications, singling out the few “unfit characters,” as Alexander Hamilton put it.

Not surprisingly, therefore, from President George Washington through President Barack Obama, only six percent of nominees to life-tenured federal courts met with any opposition at all — not even a single vote — when confirmed.

Oh, what a difference Donald Trump makes. Since he took office, that figure has soared from six percent to over 70 percent.

The 43 Democrats serving since January 2017 have, on average, voted against 49 percent of Trump’s nominees. If this were ordinary partisanship, you’d expect to see similar levels of opposition by Republicans against the nominees of Democratic presidents. Yet during the same period, the average Republican senator voted against only 10.6 percent of Obama’s judicial nominees. No Democrat today has opposed fewer than 21 percent of Trump’s nominees; no Republican then opposed more than 14.4 percent of Obama nominees.

In fact, Democrats themselves opposed an average of just 3.4 percent of judicial nominees during this period under President George W. Bush. That was consistent with the historical “regular order” of the confirmation process.

Today we are witnessing something radically different. Senate Democrats are ignoring nominees’ qualifications and opposing them simply because Trump nominated them. The confirmation process is just another front in their war against the president. This is what “winning at all cost” really looks like.

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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