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Abstract
President Trump brought judicial appointments to the pinnacle of political salience while campaigning and in office. He was also the first president to inherit Senate rules making it easier to confirm judicial appointments while past partisan obstruction provided his administration with a backlog of vacancies. How then, did President Trump’s ability to gain Senate confirmation for judicial nominees compare to recent presidents? We find that he was indeed able to fill an historic number of vacancies. However, the administration was not universally successful as key nominations had to be prioritized at the expense of others. Our findings assess Trump’s legacy on judicial appointments and demonstrate the practical tradeoffs newly emerging in appointment politics.
Notes
1 President Obama had just over one year under the new rules while he also enjoyed a majority in the Senate.
2 For example, the majority party in the Senate is under no obligation to hold hearings or votes on presidential nominees. Republican senators violated Senate norms – but not the rules – as they blockaded President Obama’s judicial nominations (Slotnick, Schiavoni, and Goldman Citation2017).
3 Recess appointments are possible (Graves and Howard Citation2010), but short-lived and increasingly unlikely given congressional adaptations (Black et al. Citation2011; Ostrander Citation2015).
4 See: “A Quarter of Republicans Voted for Trump to Get Supreme Court Picks – and it paid off,” The Washington Post as well as “Polling data shows Republicans turned out for Trump in 2016 because of the Supreme Court,” Vox.
5 In contrast, the nuclear option came in the middle of Obama’s penultimate Congress, which allowed him to work through a backlog of existing nominees. However, by the next Congress – the 114th – President Obama had lost his Senate majority.
6 See: “Grassley rips up ‘blue slip’ for a pair of Trump court picks,” Politico and “Lindsey Graham: Blue slips won’t derail Trump appeals court picks,” Associated Press.
7 For example, during the Trump administration, Patrick J. Bumatay was nominated three times to the lower courts. His first nomination to 9th Circuit was “returned” at the end of the 115th Congress, his second nomination to a district court (CA-S) in the 116th Congress was withdrawn, and his final successful nomination was also to the 9th Circuit but for a different vacancy than his first nomination.
8 An enumeration of Trump administration nominations is available from Congress.gov. We use information from the Judicial Biographies (https://www.fjc.gov/history/judges) data to determine demographic information for confirmed nominees and online news reports for those nominees who were not confirmed.
9 We include a table of confirmed nomination demographics in our Appendix and the demographic makeup of nominations is very similar to the makeup of confirmed cases.
10 Using a t-test to compare President Obama and Trump’s first terms, President Trump was significantly less likely to nominate female or minority candidates for the federal bench at the p < .01 level (a mean of .64 in Obama versus .34 in the Trump administration).
11 A law school was coded as elite if it was: Harvard, Yale, Colombia, Stanford, University of Chicago, University of California-Berkeley, University of Michigan-Ann Arbor, or Northwestern University (Johnson, Wahlbeck, and Spriggs Citation2006).
12 Her nomination was eventually withdrawn by the president when it became clear that – in part due to the lack of an elite law degree – she would not be confirmed by the Senate.
13 These data can be found at: https://www.americanbar.org/groups/committees/federal_judiciary/ratings/.
14 G.W. Bush also had 12 nominations rated as Not Qualified, but he had far more nominees overall in his two terms.
15 Nomination data and outcome information comes from Congress.gov searches of judicial nominations for the “Latest Action.” Also note, George W. Bush’s low success rate for the Supreme Court represents an unusual case due to the withdraw and renomination of John Roberts as Chief Justice after the unexpected death of William Rehnquist.
16 However, 14% (59 of 432) of President Obama’s district court nominations faced a hostile Senate and had an abysmal 31% (18 of 59) success rate due to an historic blockade of judicial nominations by Senate Republicans.
17 These general findings also hold when comparing the Trump administration to prior president’s first term only. See Table A2.
18 These figures may even be a conservative picture of the new politics of judicial nominations in that several nominations were advanced and confirmed under an agreement that let Democrats head home to campaign (see: https://www.politico.com/story/2018/10/11/senate-democrats-judges-895168) leading to several confirmations without cloture that may otherwise have required it to advance.
19 In a comparison of first terms using t-tests, the only president since Reagan that didn’t have significantly fewer roll call votes on judges at the p < .01 level was the George W. Bush administration, which also had significantly fewer roll call votes but at the p < .06 level.
20 Using a t-test to compare cloture use in President Obama’s first term before the rules change versus the Trump administration, we find that the Trump years included significantly more cloture votes at the p < .01 level.
21 President Trump did issue a few judicial nominations in the 117th Congress just before the end of his term, but these nominations were quickly withdrawn at the start of the Biden administration. We do not examine these transition cases.
22 In total, 69 nominations or about 35% of cases within the 116th Congress were individuals who had also been nominated in the 115th Congress.
23 In fact, 90% of renominations in the 116th Congress were successfully confirmed.
24 In fact, a t-test comparing Presidents Obama and Trump’s relative overall judicial confirmation success in their first terms is not significant (p = .32 with means of 0.65 and 0.62 for Presidents Obama and Trump, respectively).
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