But Trump needs to fill the pipeline faster.
Pretty much since the 2016 election we’ve been tracking the potential Donald Trump has to fundamentally alter the federal judiciary.
At various times we’ve expressed frustration with the ability of Democrats to slow down the Senate confirmation process. We’ve also recognized that for the most part Judiciary Chair Chuck Grassley and Majority Leader Mitch McConnell have kept nominees moving through the pipeline.
This week marked another banner week for appeals court confirmations, as Carrie Severino of the Judicial Action Network notes at National Review:
This week brought another new record with the confirmation of the 21st circuit court judge since Inauguration Day: this marks the most confirmed circuit judges ever at this point in a presidency. In addition, President Trump is just one judge shy of equaling the current record for the most circuit judges confirmed in the first two years of a presidency (22 by President George W. Bush)….
Here is this week’s update on federal judicial nominations:
Current and known future vacancies: 177
Courts of Appeals: 22
District/Specialty Courts*: 155
Pending nominees for current and known future vacancies: 85
Courts of Appeals: 10
District/Specialty Courts: 75
Nominees Awaiting Floor Votes: 34
Courts of Appeals: 1
District/Specialty Courts: 33
Nominees Confirmed by the Senate: 39
Supreme Court: 1
Courts of Appeals: 21
District/Specialty Courts: 17
Ed Whelan has another important count — how many appellate seats were flipped from a former Democrat nominee to a Trump nominee:
Let’s look at where things stand with President Trump’s picks and existing vacancies:
1. Of President Trump’s 21 confirmed appellate nominees, eight are filling a vacancy left by a Democratic appointee: Stephanos Bibas (CA3), James Ho (CA5), Amul Thapar (CA6), Michael Brennan (CA7), Amy St. Eve (CA7), David Stras (CA8), Ralph Erickson (CA10), Lisa Branch (CA11).
2. Of President Trump’s ten pending appellate nominations, three are for vacancies of Democratic appointees: Paul Matey (CA3), Marvin Quattlebaum (CA4), and Britt Grant (CA11).
3. With Fourth Circuit judge Allyson Duncan’s decision this week to take senior status, there are now twelve vacancies that await nominees. Of these twelve vacancies, five will replace Democratic appointees: four in the Ninth Circuit (three in California, one in Arizona), and one in the Second Circuit. Let’s hope that nominations for these five seats are made very soon.
This all brings to the front the importance of Republicans holding the Senate, but also as a Plan B, making sure that all current nominees are confirmed before a possible change in control of the Senate. I wrote in October 2017, Grassley and McConnell need to get moving on judicial confirmations:
It’s time for Grassley and McConnell to get moving.
Grassley needs to overcome Democratic obstruction at the committee level, even if it means altering some non-rule traditions like the blue slip.
McConnell needs to free up as much Senate floor time as is needed for debate on nominees recommended out of committee so that the backlog is cleared this year. McConnell is feeling pressure, and has announced that the Senate will have to work more days and longer hours through year end.
And Trump needs to start feeding that pipeline of nominees so that by this time next year as many as possible of those remaining vacancies have been filled.
It’s a once-in-a-generation opportunity to turn around an institution. And it is at risk in the 2018 elections.
While it is unlikely, because of the math that Democrats have far more at risk seats than Republicans, that the Senate will switch hands, it’s not an impossibility. And we shouldn’t gamble with a once-in-a-generation opportunity.
It appears McConnell is on the same page. In a May 3, 2018 interview with Hugh Hewitt, McConnell explained that his goal is that every current nominee as of July 1 get a floor vote during this Congress, even if there is a Supreme Court nomination over the summer.
HH: There are 18 vacancies, and 15 don’t have nominees, yet. There are three who are in the process that apparently tipped. So if those 18 are all put before you by July 1, nominated, do you think they all get votes by the end of the year, Leader McConnell?
MM: Absolutely, yeah. Look, I don’t consider the Congress ending until December 31st. I can only deal with a nomination once it comes out of committee. All the judges that come out of the committee, my goal is, to confirm them this year. And Hugh, if I may look forward, if we can hold the Senate this fall, given the spectacular job President Trump and his team have done of picking judges, we can do this for two more years, so that through the full four years of President Trump’s term, he will make a lasting generational contribution to the country, having strict constructionists on the court. And I know you’ve talked to your audience about what we mean when we say strict constructionists. We mean, as Justice Scalia once said, judges who will occasionally be disappointed in the decision they make because it’s required by the law or the Constitution, in other words, people who don’t try to just get the result they want no matter what the law is….
HH: So if a justice retires at the end of June/early July, what happens to your nomination conveyor belt? Does it throw everything into disarray?
MM: Well, we’re just going to work a little harder, and process the Supreme Court nomination if we were to have one, and the others as well.
HH: Would that come first? Would that go to the front of the line?
MM: It would go to the front of the line. No question about it. If there is a Supreme Court vacancy, it takes priority. No question about it.
What this means is that Trump also needs to get moving with judicial nominations, particularly at the appeals court level. That appears to be happening, but not fast enough, as this May 2 analysis shows:
So the Trump administration actually seems be picking up the pace on nominations, considering that the usual timetable up until now has been roughly one new wave per month….
… despite the impressive speed with which the White House, the Senate Judiciary Committee, and the Senate as a whole are moving on nominees, the number of vacancies, including judicial emergencies, continues to grow. As of this writing there are 142 current vacancies on the Article III bench, up from 108 at the start of Trump’s term, and 72 judicial emergencies, up from 42 at the start of Trump’s presidency.
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