President Donald Trump had a successful year in seating appeals court judges, but it is lower-level federal courts that have blocked much of his policy agenda, including withholding funds from sanctuary cities and restricting travel from some nations.
“Despite Senate Democrats’ use of petty political tactics to delay his nominees, the president will continue nominating outstanding candidates,” @HoganGidley45 says.
These federal district courts also continue to have the most vacancies.
Trump came into office in January 2017 with 108 vacancies on the federal bench. Despite rapidly moving to fill the seats, he now has 178 current and known future vacancies, according to the Judicial Crisis Network.
The conservative group reports 146 current vacancies on federal courts and 32 known future vacancies, meaning judges who have announced they will retire. Of the total vacancies, 25 are appeals court judges and 153 are district or specialty court judges.
“The vast, vast majority of cases are decided at the lower court level,” Carrie Severino, general counsel and policy director for the Judicial Crisis Network, told The Daily Signal in a phone interview.
“The Supreme Court can’t fix all judicial activism,” she said. “We’ve seen district judges put injunctions on the administration’s sanctuary cities policy, and President Trump’s immigration order. Judges take the law into their own hands at the lower level too.”
Severino was referring to Trump’s extreme vetting on travel into the United States from terrorism-related countries, and the Justice Department’s defunding of sanctuary cities that refuse to help federal authorities enforce immigration laws.
The slowdown is a result of Senate Democrats’ requiring 30 hours of debate for every nominee, even those who clear the Judiciary Committee unanimously or near unanimously, Severino and others noted.
“At this rate, it will take the president more than two terms to fill all the vacancies,” Severino said.
The Senate’s slim Republican majority successfully confirmed 12 Trump nominees for circuit courts of appeal in 2017. That’s a record number of appeals judges for a president’s first year.
Barack Obama had three circuit judges confirmed in his first year as president, and George W. Bush had six. John F. Kennedy and Richard Nixon came closest to Trump, each with 11 in his first year, according to Time.
Early in Trump’s first year, the Senate also confirmed Justice Neil Gorsuch for the Supreme Court.
The White House focuses on the successes it has had with the help of Senate Majority Leader Mitch McConnell, R-Ky., and Judiciary Chairman Charles Grassley, R-Iowa.
“The president has delivered on his promise to nominate excellent judges, beginning with Justice Gorsuch,” Hogan Gidley, deputy White House press secretary, said in a statement provided to The Daily Signal, adding:
Despite Senate Democrats’ use of petty political tactics to delay his nominees, the president will continue nominating outstanding candidates. We appreciate the hard work of Chairman Grassley and Leader McConnell, and we urge the Senate to confirm all of the remaining nominees because it’s what the American people deserve.
For his part, Senate Minority Leader Charles Schumer, D-N.Y., complained in February on the Senate floor about a lack of diversity while explaining why he wouldn’t vote for Trump’s nominee to the district court serving South Carolina.
“The nomination of Marvin Quattlebaum speaks to the overall lack of diversity in President Trump’s selections for the federal judiciary,” Schumer said March 2. “Quattlebaum replaces not one, but two scuttled Obama nominees who were African-American.”
The Senate went on to vote 69-28 to confirm Quattlebaum.
In his floor speech, Schumer also said that 83 percent of Trump’s confirmed nominees were male and 92 percent were white.
“That represents the lowest share of non-white candidates in three decades,” the Senate minority leader said.
Schumer’s office did not respond to an inquiry about judicial confirmations from The Daily Signal.
Democrats have used procedural tactics to force 30 hours of debate on almost every nominee through the process known as cloture.
Through nine presidents beginning in 1949, the Senate held a total of seven cloture votes for executive and judicial branch nominees in a president’s first year in office.
In Trump’s first year, Democrats forced 19 such votes on judicial branch nominees and 46 on executive branch nominees, notes Elizabeth Slattery, a legal fellow at The Heritage Foundation who manages the think tank’s appellate advocacy program.
“They [Democratic senators] are not saying it’s the wrong nominee. They are running out the clock,” Slattery told The Daily Signal. “A cloture vote on a judge passed 95-1, but they demanded 30 hours of debate.”
“Americans should care a lot about lower courts, because for most cases, an appeals court is the end of the road,” she added.
“The Supreme Court only decides on about 70 cases per year.”
It used to require 60 votes to stop a Senate filibuster and move to a floor vote on a judicial nominee. But in 2013, the then-Democratic majority in the Senate did away with the filibuster for appeals and district court judges and executive branch nominees.
During the 2017 confirmation process of Gorsuch, the Republican majority also eliminated the filibuster for high court nominees. So the cloture procedure has become a delaying tactic.
Senate Republicans blocked many Obama nominees, but primarily while they were in the majority, said Curt Levey, president of Committee for Justice, a conservative legal group.
“Trump started out with a historically high number [of court vacancies] and attrition has added to the high vacancies. And when you can’t keep up with retirements and deaths, you get an even bigger vacancy,” Levey told The Daily Signal in a phone interview.
“The biggest problem for Obama came during his last two years,” he said. “Now, Democrats don’t control the Senate. They are using a new tool to block judges.”
