With the Senate vote Tuesday to confirm Alabama lawyer Kevin Newsom to a seat on the Atlanta-based 11th U.S. Circuit Court of Appeals, President Donald Trump is running ahead of the pace of judicial confirmations set by his predecessor.
Newsom becomes Trump’s third confirmed appellate judge, to go along with one district court judge and Supreme Court Justice Neil Gorsuch. By contrast, on Aug. 2, 2009, then-President Barack Obama was still four days away from watching the confirmation of his first Supreme Court nominee and had not had a single appellate or district judge confirmed.
While Obama enjoyed a similar political environment to Trump — the president’s party then as now controlled the Senate — the current president has moved faster to name judges. Obama had not even nominated a district judge until the last week of June 2009. By the end of July 2009, he had named five appellate judges and six district judges.
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Trump so far has nominated nine people for appeals court positions and 17 to district courts.
“Lately, they’ve picked up the speed, and he has made a number of nominations,” said John Malcolm, vice president of the Institute for Constitutional Government at The Heritage Foundation. “They are making nominations in waves.”
Malcolm expressed satisfaction with the quality of those nominees as well. He said they appear to be well-qualified jurists.
“A number of these nominees are excellent,” he said. “And Kevin Newsom would be one of them.”
Despite Obama’s slow start, he made up for lost time, getting 55 appellate court judges and 268 district court judges confirmed by the time he left office, in addition to Supreme Court Justices Sonia Sotomayor and Elena Kagan.
It had a large impact, Malcolm said. He pointed out that when Obama took office, Democratic-appointed judges were in the majority in only one of 13 federal circuit courts, the San Francisco-based 9th Circuit; two others were split. Eight years later, Democratic appointees are the majority in nine circuits.
If Trump wants to reshape the courts, he will need to speed up the pace of the Senate, especially considering how much harder it will be to confirm judges if Democrats win control of the upper chamber in next year’s midterm elections.
For now, Trump enjoys a key advantage that Obama lacked. The current Republican Senate majority does not have to contend with filibusters as the Democratic majority in 2009 did. For that, it has former Democratic then-Senate Majority Leader Harry Reid to thank. He pushed through a change in 2013 eliminating that parliamentary tool allowing 41 senators to block lower-court judicial nominations.
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|Obama’s first 3 appellate nominees
|Trump’s first 3 appellate nominees
Still, legal experts said Democrats have other ways of slowing down nominations and have not been shy about using them.
Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, said Democrats have employed tactics such as requiring the maximum amount of debate time for even non-controversial nominees. They also have taken advantage of rules allowing consideration of nominees by the Judiciary Committee to be delayed for a week.
Another tactic is a Senate tradition known as the “blue slip,” which allows senators to hold up the nominations of judges from their home states.
“There’s been a persistent effort to gum up the works to try to run out the clock on this administration,” she said. “They honed Senate procedure to look for technicalities they could exploit.”
Carl Tobias, a University of Richmond School of Law professor and expert on judicial selection, said nominations take time even in the best of circumstances. He said the president has to settle on a nominee, who must fill out a lengthy questionnaire and financial disclosure form. The FBI must complete a background check, and the American Bar Association has to complete a report.
That is all before a confirmation hearing can be scheduled and votes held.
“The glacial pace of when the Senate is confirming has a lot to do with obstruction by the Democrats.”
Tobias said that means it is hard for the Senate to confirm more than a couple judges a month.
“There’s only so quickly you can move these through the pipeline … You still have to go through these other procedures,” he said.
Tobias said Democrats now largely are employing the same tactics that Republicans relied on to stop or stall Obama nominees.
Severino said she believes Democrats are going even further. She said the party has chosen to respond to Trump with across-the-board resistance, not just for judicial nominations but also for the president’s Cabinet and other administrative positions that typically do not provoke drawn-out debates.
“There are hundreds of slots that in the previous administration would have been simply voice votes,” she said.
Malcolm, the Heritage scholar, said Senate Majority Leader Mitch McConnell (R-Ky.) should consider ways to keep nominations moving. For instance, he said, the senator could schedule around-the-clock sessions to wear down Democrats and exhaust debate time.
“The glacial pace of when the Senate is confirming has a lot to do with obstruction by the Democrats,” he said.
While the Supreme Court attracts most of the public’s attention, Malcolm noted that the high court settles only about 75 cases a year. The appeals courts, meanwhile, hear about 50,000 cases annually, and district courts in the 12 months ending in March 2016 received 274,552 new civil lawsuits and 79,567 new criminal defendants.
Severino said Trump has the opportunity to affect the outcome of cases well beyond when his presidency ends.
“That is a huge impact, a long-lasting impact,” she said. “It’s going to last a lot longer than his executive orders and his legislative agenda.”