The judicial legacy set by Trump but engineered primarily by Senate Majority Leader Mitch McConnell (R-Ky.) includes several significant milestones, including the trio on the Supreme Court and the fact that for the first time in 40 years, there were no openings on the circuit courts. That has been a monumental achievement for a majority leader whose mantra has been “leave no vacancy behind” and for a president who simply likes to win.
“I have three Supreme Court justices. I have a great one coming,” Trump said Saturday at a campaign rally in Circleville, Ohio. Inflating the total number of judges confirmed under his tenure, the president added: “Think of that, 300 federal judges, I think close to 60 court of appeals judges and three Supreme Court justices. I mean — can you believe it? Even I can’t believe it!”
Barrett, 48, was confirmed with Republican-only votes Monday night, cementing a 6-to-3 conservative majority on the Supreme Court. She will be the 220th federal judge confirmed under the Trump presidency and the McConnell-led Senate — a figure that includes not only her and Justices Neil M. Gorsuch and Brett M. Kavanaugh, but also 53 circuit court judges, 162 district court judges and two to the U.S. Court of International Trade.
For the first time in more than four decades, there were no vacancies on the circuit court level, where approximately 30 percent of those sitting on the bench have been nominated by Trump. (That changed Monday with the death of Judge Juan R. Torruella of the U.S. Court of Appeals for the 1st Circuit, who was nominated by President Ronald Reagan.) Only President Jimmy Carter had more circuit court judges, as well as a larger share of the entire federal appellate bench, confirmed in his first term, and that was before the number of seats in the circuit courts was expanded.
Since 2017, McConnell and Senate Republicans have prioritized filling vacancies on the Supreme Court and the circuit courts, where the vast majority of cases on a litany of matters, including health care, the environment and government regulations, are settled.
“We do a lot of stuff here that is small ball, but this is something that may last 25 or 30 years,” said Sen. John Cornyn (R-Tex.), one of the majority leader’s closest allies. “I give Senator McConnell a lot of credit for keeping us focused on it.”
Few issues have energized and united the Republican base more than the issue of the judiciary, and it has been a decades-long project of the right to steadily fill seats on the federal bench with reliable conservatives. Once viewed skeptically by traditional GOP voters, Trump released a list of potential Supreme Court nominees during his campaign in 2016, a move that reassured conservatives while a seat on the court was vacant.
Still, public polling has started to show a shift in which party cares more about the judiciary. A Pew Research Center poll in August found that 66 percent of registered voters who supported Biden said the matter of Supreme Court appointments was “very important” in considering their vote for president, compared with 61 percent of Trump backers.
That same question in 2016 drew the reverse response, with 70 percent of Trump’s supporters saying the issue was “very important,” while 62 percent of backers of Democrat Hillary Clinton said the same.
To reach their judicial goals, Republicans and the White House revised Senate rules and reversed key practices used by their Democratic predecessors in evaluating nominees — traditions that some Senate Democrats have said they should similarly disregard if they take control of the Senate.
Two of the most significant changes involve floor deliberations. During Gorsuch’s nomination fight in 2017, Senate Republicans invoked the “nuclear option” to change rules for Supreme Court nominees so that they no longer needed 60 senators to advance to a final confirmation vote. That effectively finished the task Senate Democrats began in 2013, when they deployed the same maneuver to change confirmation rules for all executive branch picks and nearly all judicial nominees.
In 2019, Senate Republicans changed the rules to significantly trim the time available for floor debate for district court judges. Before the change, nominations could be debated for a total of 30 hours before a confirmation vote, but GOP senators slashed that to two hours for all nominees except those to the Cabinet, the Supreme Court, the circuit courts and some independent boards.
A Biden White House and a Democratic-controlled Senate could certainly take advantage of the floor changes by being able to confirm Supreme Court picks with a simple majority and process district court nominees more quickly on the floor, should they prioritize the judiciary.
There are other practices generally used by the previous Democratic-led Senate that Republicans have neglected. They include the “blue slip” tradition for circuit court nominees — which effectively gave a state senator veto power over judicial picks from his or her state.
Democrats also complained when the Senate Judiciary Committee in the past four years — first under Sen. Charles E. Grassley (R-Iowa) and now Sen. Lindsey O. Graham (R-S.C.) — questioned multiple circuit court nominees at the same confirmation hearing, which Democrats said offered less time for senators to vet each one individually. Republicans said previous committee leaders, including Democrats, have held hearings featuring more than one circuit court nominee.
Meanwhile, at the Trump White House, the counsel’s office has declined to allow the American Bar Association to review potential candidates before they are formally nominated. That was the process used by the Obama White House — which helped weed out “not qualified” candidates before their names were made public — but the Trump administration returned to the process followed under President George W. Bush, which allowed for American Bar Association evaluations after people were nominated.
There has been no clamoring from Democrats to return to many of these practices. Sen. Dianne Feinstein (D-Calif.), who would be in line to be Judiciary Committee chairwoman under Democratic control, has not publicly committed to any particular policy for processing nominees if she ran the panel.
Other senators on the Judiciary Committee aren’t as gun-shy, a reflection of the acrimony after years of partisan fighting in the judicial wars.
“No,” said Sen. Mazie Hirono (D-Hawaii), when asked whether Democrats should offer deference to Republican home-state senators if they do not sign off on circuit court nominees from a Biden administration. “The rules have changed. Do I look stupid to you?”
Sen. Richard Blumenthal (D-Conn.), another Judiciary Committee member, also stressed that he believes Democrats “ought to play complete hardball” on judges.
“The question is whether we should allow states where there are two Republican senators to dictate who the judge here should be. I would say no,” Blumenthal said.
Still, some other Democrats are more cautious at this point about embracing some of those practices.
Sen. Christopher A. Coons (D-Del.) said he would have to think about whether he would support reinstating the blue-slip practice for circuit court nominees. Coons, perhaps Biden’s closest ally in the Senate, also noted that the American Bar Association has “long played an important role of providing an early warning” about unqualified picks.
“We need to have a focused, deliberate conversation about which are the features of the confirmation process from before that are constructive, appropriate, necessary and we want to restore, and which are the features that, frankly, given they’ve been broken, we’re not going to reinstate them,” Coons said.
Those are arcane, yet critical, process decisions that Democrats may have to make soon.
About 30 circuit court judges nominated by Democratic presidents may be eligible to take senior status — a kind of semiretirement — but have not chosen to do so, according to Russell Wheeler, a fellow at the Brookings Institution who is an expert on the federal judiciary. (One seat on the U.S. Court of Appeals for the 7th Circuit opened up with Barrett’s confirmation, although the Trump White House has already nominated her replacement.)
Trump’s influence on the circuit courts is already deeply felt. He and Senate Republicans have turned three federal appeals courts once dominated by Democratic-appointed judges — the U.S. Court of Appeals for the 2nd Circuit, based in New York; the 3rd Circuit, based in Philadelphia; and the 11th Circuit, based in Atlanta — into courts with a majority of Republican appointees, according to Wheeler.
Even the U.S. Court of Appeals for the 9th Circuit, often a bane for legal conservatives and a target of efforts by Republican senators to break it up, has become less Democratic as Trump picks have been tapped for the San Francisco-based court.
Should eligible Democrats take senior status or leave the bench in coming months, that would give the next president a significant pot of openings in the appeals courts to fill.
“You’re likely to see . . . a splurge of Democrats taking senior status” if Biden wins, Wheeler said.
The bottom line is that few are publicly predicting a de-escalation of the judicial wars that have been continuously ramped up by both Democrats and Republicans over the past few decades, with few political incentives for senators to reinstitute practices meant to encourage bipartisan sign-off on judges.
Democrats were responsible for the first partisan filibuster of a circuit court nominee and went “nuclear” to make it easier to confirm nearly all nominees. Republicans repeatedly blocked President Barack Obama’s choices for the influential U.S. Court of Appeals for the District of Columbia Circuit and ignored the nomination of Merrick Garland, Obama’s third Supreme Court pick, for eight months in 2016.
“It cuts both ways,” Cornyn said. “And that’s part of the problem.”