President Donald Trump and Senate Majority Leader Mitch McConnell are reshaping federal courts at a blazing pace, with the Senate’s confirmation of 59 judges so far this year offering a bright spot for the GOP leader who has been criticized for holding up action on just about everything else.
The Senate confirmed 13 district court judges two weeks ago before leaving for Congress’s annual August recess. That brought the number appointed so far in Trump’s presidency to 99, in addition to a record 43 appellate court judges and the confirmation of conservative Supreme Court Justices Neil Gorsuch and Brett Kavanaugh.
“I saved the Supreme Court for a generation by blocking President Obama’s nominees and led the way for Neil Gorsuch and Brett Kavanaugh,” McConnell bragged on Aug. 3 to a crowd in his home state of Kentucky.
The fast pace of judicial confirmations has framed a lasting legacy for the 77-year-old McConnell and won him plaudits from conservative groups, even as legislative gridlock and his hard-line tactics have helped tank his national approval rating in advance of a 2020 re-election bid. The majority leader proudly calls himself the “grim reaper” for Democratic proposals.
Liberal groups say the shift brings judges to the courts who are more likely to roll back women’s rights, including abortion, as well as civil rights, voting rights and consumer protections.
“They’re stacking the courts with individuals who will rule with them in lockstep on their agenda,” said Nan Aron, president of the Alliance for Justice, a progressive group that advocates on justice issues.
McConnell has little common ground on legislation with the Democratic-controlled House, which is pushing action on background checks for gun buyers, election security, climate change and expanded health care coverage.
Instead, he has largely turned the Senate into a machine that cranks out conservative judges. More than two-thirds are white men and their median age is 47.5 years. Many agree with the conservative Federalist Society’s effort to limit the federal government’s ability to assert powers that aren’t spelled out in the Constitution. The group helped Trump vet Supreme Court candidates.
“When you view the total landscape of what Congress is doing, this is the grand slam,” said Federalist Society executive vice president Leonard Leo, who has been a key adviser to the president. “It’s a multi-generational shift in the courts and no one can change that. It’s why McConnell has made such a priority of it.”
McConnell’s success hinges on aggressive moves that have earned him plenty of critics. He and Senate Republicans held up President Barack Obama’s court nominees, including the Supreme Court vacancy after Justice Antonin Scalia died in 2016, leaving 86 district court vacancies and 17 circuit court vacancies for Trump to fill when he took office in January 2017. There are 677 authorized district court judge positions in the county.
The majority leader has also benefited from a rule change under former Democratic Majority Leader Harry Reid, who unilaterally reduced the number of votes needed to advance appellate and district court nominees to 51 votes instead of 60.
Twice McConnell has used the same hardline partisan approach to change the rules. In 2017 the GOP lowered the threshold for Supreme Court nominees to 51, and in April they cut debate time for district court judges from 30 hours to just two.
Biggest Impact
McConnell and Trump are having their biggest impact on the 13 U.S. appeals courts, which have tremendous influence. While the Supreme Court decides fewer than 70 cases a year, appellate courts ruled on or dismissed 48,515 cases for the year ending March 31, 2019, according to the Administrative Office of the U.S. Courts in Washington.
The 43 appellate court judges confirmed under Trump are the most of any president at this point -- and approach the 55 confirmed during Obama’s eight years in the White House. Trump-appointed judges now make up almost a quarter of the 179 full-time federal appeals court slots.
“The Senate and the administration has put their eggs in the basket of getting circuit judges confirmed, based on the fact that that’s where the policy gets made,” said Russell Wheeler, a Brookings Institution scholar who tracks judicial confirmations.
Still, the impact has been limited by the fact that about 60% of Trump’s appellate court nominees have replaced judges selected by other GOP presidents, he said.
Trump’s appointees have shifted the political balance on one appeals court, the Philadelphia-based 3rd U.S. Circuit Court of Appeals. The Senate has confirmed three Trump nominees to that court, giving it eight Republican-appointed judges and six Democratic appointees.
Tipping Point
Several other courts are nearing the tipping point. Democratic appointees have a one-seat advantage on the New York-based 2nd Circuit and the Richmond, Virginia-based 4th Circuit. The Atlanta-based 11th Circuit is evenly split with six judges appointed by each party.
And with McConnell’s help, Trump is making his mark on the San Francisco-based 9th Circuit, the longtime liberal bastion that has drawn the president’s repeated ire. The 9th Circuit now has 16 Democratic appointees and 12 Republican appointees, compared with 18 and 7 when Trump took office. Another term for Trump could let him transform that court.
Fewer than half of the judges confirmed under Obama were white males, but that trend has reversed under Trump. About 70% of his circuit court judges are white men, as are 69% of his lower court judges, according to data compiled by Wheeler.
Despite the high-profile fights over judges that occur in Washington, Wheeler said most cases that come before the courts don’t involve rigidly ideological issues and it could take years to understand how much Trump’s selections are changing the way the law is interpreted.
‘Well-Credentialed’
“The general consensus is that his nominees and appointees are well-credentialed according to standard indices -- the law schools they went to, the law schools where they teach and the firms they work for,” he said. “They do appear to be very conservative but we’ll have to wait and see how that plays out.”
When the Senate returns to work in September, a half-dozen more district judge nominees are in the pipeline for confirmation votes. After that, Leo of the Federalist Society said, McConnell will turn attention to the four remaining vacancies on circuit courts. They are in Mississippi, Oregon, Connecticut and New York.
With 2020 elections looming, Leo said the pace of confirming remaining court vacancies will start to slow down after October. Senators will turn their attention to the fall elections, when control of the White House, Senate and House will be at stake, he said.
Many Democratic-nominated judges who could be eligible to retire before the election will probably hold on in case a Democrat wins the White House, said Curt Levey, president of the conservative Committee for Justice in Washington.
“Just about all of the Democratic appointees will avoid retiring as long as possible, so you’ll be replacing Republican appointees with Republican appointments,” Levey said.
(Published by Bloomberg, August 13 2019)
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