Senate Majority Leader Mitch McConnell (R-Ky.) pledged last week to cancel the Senate’s traditional August recess. Why? He said that, because Democrats were dragging their feet on confirming President Trump’s judicial nominees, senators would need to stay in Washington.
However, other observers claim that the Senate is moving at a record pace to put new judges on the federal bench — with the result that courts are becoming more conservative and less diverse. Democrats suspect that the president and his Senate allies are fast-tracking nominations in case Republicans lose control of the chamber in the 2018 midterm elections this November.
Are Trump and the Republican Senate really beating past records at confirming federal judges? And is the GOP already shifting the ideological tenor of the courts? The answer is a bit more mixed than others are reporting.
This is how we did our research
We wanted to compare Trump’s record of putting federal judges on the bench to those of his recent predecessors. To do that, we examined Federal Judicial Center’s Biographical Directory of Article III Federal Judges, 1789-present to identify all Article III judge nominations made and confirmed before May 31 in an administration’s second year for all presidents dating back to Ronald Reagan.
Since our data begin in 1981, our analysis includes four Supreme Court appointments — Sandra Day O’Connor, confirmed Sept. 21, 1981; Ruth Bader Ginsburg, Aug. 3, 1993; Sonia Sotomayor, Aug. 6, 2009; and Neil M. Gorsuch, April 7, 2017. (Note that while other Supreme Court justices have been confirmed since 1980, these are the only ones confirmed within the initial 17 months of an administration.)
Our data cover all Article III judges from across the federal judiciary, including the 13 U.S. Circuit Courts of Appeals (including the Court of Appeals for the Federal Circuit), the 94 federal district courts, the U.S. Court of International Trade and the Supreme Court. All told, there are about 860 permanent seats on these courts.
For each president, we calculated the average time from the date of nomination to the date of Senate confirmation across all confirmed judges. We then separate the judges by court to isolate the average time to confirmation for appellate and district court judges.
Overall, Trump isn’t filling judgeships as fast as many think
Trump may seem like the rabbit in this story — quick out of the gate. But that’s only compared to Obama’s slower pace. Below, we show the total number of federal judges confirmed by the Senate through the first 17 months of a president’s term in office.
As of May 31, 2018, the GOP-led Senate had confirmed 39 of Trump’s judicial nominations, including one Supreme Court justice. This places him second to last compared to the number of confirmed judges at this point in the term for presidents dating back to Ronald Reagan in 1981-82; only Obama comes in behind him.
But he’s doing well on appeals court judges
Where Trump and Senate Republicans stand out is in confirming appellate court judges. The GOP Senate has confirmed 21 of Trump’s nominations for judges to the courts of appeals — far outstripping others presidents’ records at this point in their terms, dating back to Reagan.
Some believe that this focus on the appellate courts is a Trump administration strategy because these courts have a more powerful effect on policy and legal change. The courts of appeals hear all appeals from the federal trial courts and the federal bureaucracy. They hold authority over large regions of the nation. Their cases, like almost all of the U.S. Supreme Court’s cases, deal exclusively with how to interpret federal laws, executive orders, bureaucratic regulations and rules and the Constitution.
Moreover, the U.S. Supreme Court hears relatively few cases — roughly 80 each year. That means that the courts of appeals are the courts of last resort for thousands of litigants each year.
The Senate is moving more slowly than in the past
In 2013, the Democrats were in charge of the Senate — and banned filibusters of judicial nominations on the lower federal courts. That means today’s Republican Senate can confirm nominees with a simple majority vote.
Yet eliminating the filibuster has not appreciably sped up confirmation of federal judges. On average, it has taken almost 190 days for the Senate to confirm each of Trump’s appellate and trial court judges. That is appreciably longer than previous presidents’ records. But as you can see in the figure below, Trump’s appellate court picks are moving somewhat faster, taking on average 138 days to get to the bench. Still, that is longer than the previous presidents’ experiences — again, except for Obama’s.
But as a group, the new judges are indeed whiter, more male and more conservative than recent presidents’ nominees
Trump’s push to confirm appellate court judges has led many to claim that Trump is making the federal judiciary more conservative. There is some truth here, but not as much as some observers believe.
About a third of Trump’s confirmed judges have replaced judges who had been appointed by Democratic presidents: Carter, Clinton or Obama. Add in Trump’s pending nominees, and the percentage that will replace judges appointed by Democrats rises to about 40 percent. While it is true that Trump’s nominees may be more conservative than judges appointed by other Republican presidents, the larger shifts will come from replacing Carter’s and Clinton’s judges.
Given the demise of the judicial filibuster and the serious weakening of the norm of senatorial courtesy that gives extra consideration to the views of home-state senators for each appellate nomination, it is safe to assume that most of Trump’s nominees will be confirmed. So far, about three-quarters of his nominees have been men, and 90 percent are white, reversing a presidential trend, since Clinton’s presidency, of steadily diversifying the bench. And Trump is selecting considerably more conservative judges than have previously served in these spots. So it is indeed likely that many federal benches will shift to the right.
Given all this, even if the GOP were to lose control of the Senate in November’s elections, Trump will have changed the federal judiciary, especially the courts of appeals. His legacy will be a more conservative and less diverse appellate bench.
Still, because his nominees are being confirmed relatively slowly, Trump’s imprint on the courts is less striking than we might expect. Senate Republican leaders know this. And with electoral winds blowing, no surprise McConnell has canceled at least some of the August recess to find more time for the Senate to confirm more judges to the bench.
Rorie Solberg is associate professor of political science at Oregon State University.
Eric N. Waltenburg is professor of political science at Purdue University.
Together they are co-authors of “The Media, the Court, and the Misrepresentation: The New Myth of the Court” (Routledge, 2014).