The federal judiciary continues to move right

November/December 2018

The transformation of the federal judiciary moves forward with Trump and McConnell working diligently hand-in-hand.

As President Trump’s second year in office comes to a close, one of his greatest accomplishments has been the lifetime appointments of federal judges. At print time, 85 federal judges had been confirmed. These include two U.S. Supreme Court justices, 30 Circuit Court of Appeals judges, and 53 District Court judges.

This success was the result of U.S. Senate Majority Leader Mitch McConnell’s philosophy that “the most important thing the Senate is involved in is the personnel business” and “most important are the lifetime appointments to the courts.”

Those efforts recently stalled when Sen. Flake (R-AZ) announced a blockade of all judicial nominees until the Senate votes on a bill to shield the special counsel from any interference by President Trump. As the deciding vote on the Senate Judiciary Committee, Flake has frozen more than 20 nominees at that stage of the process. Confirmation by the full Senate has also become much more difficult, erasing the Republican’s slim 51-vote majority and requiring Vice President Pence’s vote to break the tie.

In a Dec. 7 radio interview, McConnell (R-KY) expressed his desire to “do a significant, additionalpackage of judges before the end of the year.”

For some perspective, 142 vacancies still remain (16.7 percent) of the Federal Judiciary. That’s more than President Obama at this point in his presidency; more than double George W. Bush and Clinton; and three times George H.W. Bush and Reagan. There are 70 nominees currently pending to fill those vacancies.

While the number of nominees confirmed to the Circuit Courts of Appeals has surpassed any previous president at this stage of their presidency, only 55 percent of the total of all Trump’s judicial nominees have been confirmed. Clearly, there is more work to do. When compared with the five most recent presidents prior to Trump, 55 percent is the second lowest percentage.

The Nov. 6 election results will likely help with this shortcoming. Loss of control in the U.S. House will likely greatly hamper the Republican legislative agenda, resulting in more time for the Senate to focus on judicial confirmations. This is further aided by the Republican pick up of two more Senate seats in the mid-term elections.

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