Washington Watch-How Trump Broke the Judicial Nominations Record

One of the Trump administration’s most notable legacies will be the record number of judges appointed to the federal bench. In four years, the Trump White House nominated and Senate Republicans confirmed associate justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to the Supreme Court, along with 54 judges to appeals courts, 173 judges to district courts, and three judges to the Court of International Trade—a total of 233 appointments. This number represents more than one-third of all active federal lifetime judgeships in the United States, the greatest number by any president going back to Ronald Reagan.

The restocking of the federal judiciary by the Trump administration was the product of many forces, including relentless efforts by Senate Majority Leader Mitch McConnell, R-Ky., and his Judiciary Committee chairs, Sen. Chuck Grassley, R-Iowa, and Sen. Lindsey Graham, R-S.C. Throughout the Trump administration, McConnell prioritized Senate floor time to debate and vote on judicial nominates, frequently pushing aside legislative business. “Leave no vacancy behind,” McConnell quipped once during a radio interview, only half-jokingly.

Even before Trump entered office, McConnell prepared for a ramp-up in federal bench appointments if Republicans regained the White House in 2016. The blockade of the nomination of circuit appeals judge Merrick Garland to the Supreme Court was only the tip of the iceberg. Scores of unfilled judgeships were left behind by the Obama administration, caused mainly by Republican obstruction of Obama nominees in committee and on the floor. That permitted Trump to enter the White House in 2017 with 112 vacancies. By contrast, President Obama assumed the presidency with only 53 vacancies left by President Bush.

In addition, the Trump administration entered the White House with firm ideas about who to nominate to the federal bench and when, with lists of potential Supreme Court picks as well as comprehensive lists and intelligence on hundreds of potential district and circuit nominees compiled by allies outside 1600 Pennsylvania Avenue. Judicial nominees were named in waves of White House announcements. Under the McConnell playbook, circuit appeals court nominees always received priority in hearing scheduling and floor consideration. By July 2020, McConnell had whittled down circuit appeals court vacancies to zero and was starting a more forceful effort on district court nominees hailing from red states.

Changes in Senate rules also favored McConnell’s efforts. In 2013, then-Majority Leader Harry Reid installed the first rule changes that accelerated judicial consideration of circuit nominees. McConnell broadened those rules to Supreme Court and district court nominees after he succeeded Reid and power switched hands in the Senate in 2015. Grassley also trimmed back the panel’s century-old tradition of blue slips, no longer waiting for home state senators to signal their approval of circuit nominees before pushing ahead with hearings. (The blue slip tradition still continues in the consideration of district court nominees.)

President-elect Joe Biden will take office on January 20 with far fewer vacancies than President Trump did. But those vacancies will likely arise in the coming months as some judges announce their retirement or secure senior status, having earlier forestalled such decisions with the hope of a Democratic president taking office. In December, the Biden transition team invited senators to recommend candidates for district court positions, particularly those “whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”

Meanwhile, the top Republican and Democratic leadership posts on the Senate Judiciary Committee will change in the new Congress. Sen. Dianne Feinstein, D-Calif., has announced that she will relinquish the role as the top Judiciary Democrat. On the Republican side, Grassley will once again become the top GOP member because of chairmanship term limits under Senate Republican rules. In the House, Rep. Jerrold Nadler, D-N.Y., is expected to continue as Judiciary Committee chair, with Rep. Jim Jordan, R-Ohio, serving as ranking member.

About the Author

Bruce Moyer is government relations counsel for the FBA.

About the FBA

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