President Trump and Congress have yet to enact any major bills in 2017, although that could change once the legislative process on taxes runs its course. They also face upcoming deadlines to continue federal spending authority after Dec. 8, to develop policy for several hundred thousand undocumented residents brought to the United States as children, and to reauthorize the State Children’s Health Insurance Program, known in Vermont as Dr. Dynasaur.
There is one area, however, in which Trump and the congressional Republicans can claim more success than their predecessors — confirming judges to the federal bench. With another month to go in 2017, Trump and the Senate have nominated and confirmed more federal judges than in the first year of any presidency since 1977, when Jimmy Carter was in the White House.
There was a high number of vacancies on the federal bench when Trump took office. So far, Trump has nominated more than 60 people for the federal district and appeals courts, as well as Neil Gorsuch for the Supreme Court. The large number of vacancies was a consequence of Senate Majority Leader Mitch McConnell’s decision to blockade President Obama’s judicial nominations in 2015 and 2016.
The highest-profile victim of McConnell’s strategy was Merrick Garland, who never received a committee hearing, much less a Senate floor vote, when Obama nominated him to replace the late Antonin Scalia on the Supreme Court. Many of Obama’s nominees to the district and appeals courts received the same treatment as Garland in the Senate. Thus, Trump took office with several years’ worth of vacancies on the federal bench.
Once Trump began nominating judges for these vacancies, the Senate has acted on them quite rapidly. In part, this is due to Senate Judiciary Chair Charles Grassley, R-Iowa, deciding to abandon the former Senate tradition of the “blue slip,” which in effect gave senators a veto over the president’s nominees for judicial vacancies in their home states.
More importantly, it is due to the decision of former Senate Majority Leader Harry Reid to “go nuclear” in 2013 and remove the minority party’s ability to stop nominations to the lower federal courts by filibustering them. (The Republicans ended the filibuster for Supreme Court nominees earlier this year.) Some congressional observers warned in 2013 that the Democrats’ eliminating the filibuster could come back and haunt them if they ever were the minority in a future Senate. That warning has indeed materialized this year.
The number of judicial vacancies may continue to be high for the next several years. Many judges nominated by President Clinton, who have been serving on the bench for 20 to 25 years, are aged 70 or older. While there is no mandatory retirement age for federal judges, many older judges prefer to take what is known as senior status, which allows them to work a part-time schedule, and also be replaced by a full-time judge.
The Trump White House and Justice Department have worked closely with the Federalist Society, a group of conservative lawyers and law professors, in finding nominees for the district and appeals courts. Some of these nominees graduated from the nation’s leading law schools, clerked for Supreme Court justices, and practiced at a high level in either the public or private sector, or as law school professors. Others have much more limited records of accomplishment.
What almost all of the Trump nominees have in common is an ideology that emphasizes an “originalist” interpretation of the Constitution, and a narrow reading of constitutional provisions such as the First Amendment and the due process and equal protection clauses of the Fourteenth Amendment. Many of these judges will remain on the federal bench for many years after Donald Trump has left the White House.
Eric L. Davis is professor emeritus of political science at Middlebury College.