President-elect Donald Trump will take office with a chance to fill more than 100 seats on the federal courts because of an extraordinary two-year slowdown in judicial confirmations engineered by Senate Majority Leader Mitch McConnell.
Since Republicans took control of the Senate at the beginning of the 114th Congress in 2015, senators have voted to confirm only 22 of President Barack Obama’s judicial nominees. That’s the lowest total since 1951-52, in the final years of Harry Truman’s presidency.
When Democrats controlled the Senate in the last two years of George W. Bush’s presidency, 68 of his judicial nominees were confirmed.
There are more than twice as many vacancies on federal benches as when Bush left office.
The Administrative Office of the U.S. Courts counts 890 full-time federal judgeships. District courts have 84 vacancies, and the regional circuit courts of appeal have 14 more. The specialized appeals courts for international trade and federal claims have eight vacancies. The 107th opening is the best-known: a Supreme Court seat vacant since Justice Antonin Scalia died.
The vacancies reflect a long-term goal of McConnell and other leading Republicans to tilt the court system toward conservatives.
Russell Wheeler of the Brookings Institution, who tracks federal judges, said Democratic appointees now account for 51 percent of the judges on the district and appellate courts, reflecting the selections of Obama and President Bill Clinton. But, he said, Trump could tilt the majority back to Republicans within four years aided by both retirements and the unusual number of vacancies.
Senate Republicans defend the high number of vacancies by pointing to the high number of appointments made during Obama’s presidency. Over eight years, Obama appointed 329 judges to the federal courts. President George W. Bush named 326.
Neither did as well as the two-term presidents who preceded them. President Ronald Reagan appointed 384 judges, while Clinton named 379. Reagan’s picks included three new Supreme Court justices, including Scalia; Clinton, Bush and Obama each made two appointments to the Supreme Court.
Beginning with the Reagan presidency in the 1980s, liberal activists focused on the courts and urged the Senate to block judicial nominees who were seen as too conservative. They succeeded in blocking Judge Robert Bork from the Supreme Court in 1987, a year after rejecting Jeff Sessions of Alabama for a judgeship. Sessions later was elected to the Senate, and now is set to become the U.S. attorney general under Trump.
Bush’s second Supreme Court nominee, Clarence Thomas, survived a fierce battle to win confirmation on a 52-48 vote in 1991, while several of Bush’s lower-court nominees were filibustered for a time by Senate Democrats. They included Judge William Pryor, an Alabama protege of Sessions who is now a leading candidate for the vacant Supreme Court seat.
Conservative activists have attacked Clinton’s and Obama’s nominees as too liberal, but Republicans have mostly avoided battles. Rather, they have used low-key tactics of delay and refusals to allow floor votes, even when Democrats held the majority in the Senate. Because it takes 60 votes in the 100-member Senate to cut off debate and hold a final vote, the minority party could block the president’s nominees, even if they had majority support.
In frustration, Senate Democrats in 2013 used their majority to change the rules and abolish the filibuster option for lower-court judges. That cleared the way for dozens of Obama’s stalled nominees to be confirmed, including three new judges for the U.S. Circuit Court of Appeals for the District of Columbia.
But that gambit came with a price. When McConnell and the Republicans took control in 2015, they said they saw no need to move forward with judicial nominees, since Obama was then well ahead of the pace set under Bush.
And when Trump sends up his nominees for the vacant judgeships, positions, the minority Democrats will not be able to block a vote on their confirmation.