Among the people Trump has to thank for accomplishing his promises regarding the judiciary, Senate Majority Leader Mitch McConnell, R-Ky., tops the list. About an hour after the news of Scalia’s death broke, McConnell announced he would hold that seat open for the next president to fill. Senate Republicans’ feet-dragging over President Barack Obama’s nominees also led to the backlog of pending nominations and vacancies.
Since Trump’s election, McConnell has made filling that backlog his top priority. He’s shrugged off his detractors’ accusation that he’s made the Senate a “legislative graveyard” and embraced the charge of being the “grim reaper” of Democrats’ policy goals. The Kentucky Republican not only prioritized scheduling confirmation votes, he also changed Senate rules to keep the conveyor belt of confirmations running as smoothly as it can in the face of unmitigated resistance.
McConnell says he simply took a leaf out of former Senate Majority Leader Harry Reid’s playbook. Reid used the “nuclear option” to change Senate rules and make most federal court nominees confirmable with just 51 votes instead of 60. McConnell extended that change to Supreme Court nominees. McConnell also changed the rules to require only two hours of debate for most nominations when senators requested a cloture vote.
Prior to the rule change, a request for a cloture vote required 30 hours of debate. Democrats requested cloture votes for nearly every one of Trump’s nominees, including his executive branch nominees.
Tom Jipping with the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation called the level of Democrats’ opposition to Trump nominees historically unprecedented. “They’ve made a lot of progress in the face of headwinds and resistance that’s off the charts,” he said of Republicans. “But there’s a lot of work to do.”
Trump’s allies say voters should not underestimate the impact of his picks on the lower courts. The Supreme Court’s caseload garners much of the public attention, but the high court only accepts around 100 of the 7,000-plus cases attorneys ask it to review per year. Meanwhile, hundreds of thousands of cases end at the lower courts.
“The Court of Appeals is normally the last stop for 99.9 percent of all federal cases,” said Mike Davis, who formerly worked as chief counsel for judicial nominations to then-chairman of the Senate Judiciary Committee Chuck Grassley, R-Iowa. Davis founded the Article III Project, which advocates for and supports conservative nominees. According to the Article III Project’s tracker, the Senate has confirmed 193 of Trump’s judges.
That includes 51 out of a total of 179 appellate judgeships. In comparison, President Obama only confirmed 55 appellate judges over the course of his entire two-term presidency. The appellate court is important for another reason: It’s one place presidents look when considering candidates for the Supreme Court.
Trump has also flipped three appellate courts from a Democratic-appointed majority to a Republican-appointed majority: the 2nd, 3rd, and 11th circuits. Other circuits, like the 9th, are moving to the right.
Long considered the go-to champion for progressive causes, the 9th Circuit initially seemed set to continue that role during the Trump administration. It ruled against Trump’s policies on healthcare (contraceptive mandates), immigration (the travel ban), and other issues. On that circuit, Democratic-appointed judges initially outnumbered their Republican counterparts by 18-7. But Trump’s first term has not left the 9th Circuit untouched. Now, the divide is 16-13.
“There’s a number of recent decisions I don’t think would have been within the realm of possibility two or three years ago,” Leonard Leo, co-chairman of the Federalist Society, said of the 9th Circuit’s shift.
Meanwhile, these shifts have caught the attention, and ire, of the left: Democratic presidential contenders in the once-large primary field cited concerns that a more conservative court could strike down environmental regulations, affirmative action, the Affordable Care Act, restrictive gun laws, and ultimately, unravel the right to abortion.
Among the suggestions for how Democrats could go on the offensive: abolish the Electoral College, expand the Supreme Court, codify into law the right to an abortion to circumvent a court ruling, and abandon the legislative filibuster. The presumptive Democratic presidential nominee, former Vice President Joe Biden, said he did not support court-packing or abolishing the Electoral College or the filibuster. But many other serious contenders endorsed some or all of the suggestions.
TRUMP’S RATE OF CONFIRMATION is likely to slow in 2020, and not just because of the COVID-19 pandemic. Judicial watchers say that in some ways, the Trump administration has been a victim of its own success, particularly with the lack of vacancies at the appellate court. U.S. District Court vacancies remain, but a Bloomberg Law analysis of Federal Judicial Center data in February found that nearly 84 percent of the District Court vacancies are in states with at least one Democratic senator or states with two Democratic senators. The practice of considering home state senators’ preferences in District Court nominations (known as the blue slip process) means the White House will have to work with Democratic senators on nominations to get judges across the finish line.
The Senate has confirmed a total of 138 of Trump’s District Court picks so far, but there are still 74 vacancies. Leo noted that, because of the blue slip process, “it takes longer for [the District Court bench] to shift,” and Trump allies say a second Trump term will be important to solidifying the change to the courts.
One strategy some are advocating is to encourage Republican-appointed judges to retire or take senior status, a form of semi-retirement, before November. The created appellate or District Court vacancies could be filled with younger, but still Republican, appointees. Even in the event that Trump doesn’t win reelection, this would extend the ideological makeup of the court.
“I always say, if these Republican-appointed judges care about their replacement, they have a short window of opportunity to retire so we can get their replacement nominated, confirmed, and appointed before the election,” Davis said. He added that this would be a precautionary strategy, as he believes Trump is going to win reelection.
Though she isn’t a Trump supporter, Bukovinac said she doesn’t think pro-life advocates are willing to risk losing the ground Trump has gained on the courts. “Pro-life people are primarily concerned with any openings on the Supreme Court. And overturning [Roe v. Wade] is a primary goal of the pro-life movement,” she said.