Ever since Donald Trump began running for President, he has incessantly vowed to “make the federal judiciary great again” by deliberately seating conservative, young, and capable judicial nominees, a project which Republican senators and their leader, Mitch McConnell (R-KY), have decidedly embraced and now vigorously implement. The chief executive and McConnell now constantly remind the American people of their monumental success in nominating and confirming aspirants to the federal courts. The Senate has expeditiously and aggressively confirmed two very conservative, young, and competent Supreme Court Justices and fifty-three analogous circuit jurists, all of whom Trump nominated and vigorously supported throughout the confirmation process. The thirteen appeals courts across the United States currently face no vacancies among 179 appellate court positions, the fewest since President Ronald Reagan’s Administration.
However, these endeavors have imposed considerable expense on the federal courts, particularly at the district court level, and throughout the nation. For instance, the bench must confront sixty-five empty district posts in 677 positions, forty-one of which comprise “judicial emergencies.” President Trump and the Republican Senate majority depend substantially on numerous measures that undercut the nomination and confirmation processes and numbers of venerable rules and conventions—which contemporary executive branches and upper chambers have dutifully honored and which have clearly and consistently supported the appointment of well-qualified, mainstream jurists. Because the federal courts were actually great before Trump captured the presidency and Republicans captured a Senate majority and their conduct has subverted the judiciary and undermined public confidence in the tribunals, the government’s tripartite branches, and the rule of law, the numerous appointments initiatives of the chief executive and the Senate to supposedly enhance the courts deserve comprehensive assessment.
Part I briefly recounts the history of the judicial selection process. Part II scrutinizes how candidate Trump aggressively focused attention on the federal courts—especially the United States Supreme Court and the thirteen appellate courts—by promising their improvement to help win his election in 2016 and cultivate public support for his presidency and reelection this November as well as how practically all Republican senators supported Trump’s judicial selection initiatives. For example, candidate Trump insistently pledged that his administration would certainly make the bench great again—even though the judiciary has perennially been the crown jewel of American democracy and the envy of the world—by consistently recommending numerous conservative appeals court nominees and collaborating with Republican senators to confirm those individuals. Indeed, this administration and the 115th and 116th Senates have shattered virtually all records for confirming young appellate court judges who possess extremely conservative ideological viewpoints, specifically on critical matters, including executive power, the modern administrative state, and the “culture wars,” such as voting rights, discrimination, and reproductive freedom. These developments have occurred despite the neglect by the chief executive and the Senate of the multiplying trial court openings, the cascading emergency vacancies, and the plummeting confirmations of diverse nominees. The ramifications of Trump Administration and Republican Senate majority judicial selection are tellingly most palpable and deleterious in “blue” states, which Democratic senators represent.
The President also jettisons, changes, or dilutes efficacious rules and customs which had long facilitated modern judicial selection. For instance, the administration negligibly consults senators from states that do encounter vacancies, notwithstanding those politicians’ greater familiarity with accomplished counsel who practice in their jurisdictions. The White House as well completely eschews official American Bar Association (“ABA”) participation in selection while nominally considering myriad effective ABA investigations and candidate ratings, on which every President since Dwight Eisenhower, besides George W. Bush, had previously relied. President Trump concomitantly institutes little effort to identify, analyze, nominate, and confirm ethnic minorities or lesbian, gay, bisexual, transgender, or queer (“LGBTQ”) individuals, although enhanced diversity significantly improves the bench. Fully one third of his nominees have essentially compiled anti-LGBTQ records. Moreover, President Trump castigates jurists who invalidate his political endeavors as “so-called” and “Obama” judges, while he caustically accuses jurists of threatening national security with their opinions and insists that judges defer to professional expertise which Trump claims is lodged in the executive branch.
The Republican Senate majority, for its part, has eliminated court of appeals blue slips without convincing support for the dramatic alteration, which had permitted Republican senators from jurisdictions with appellate court openings to halt myriad nominees during the administration of President Barack Obama. Senate Judiciary Committee hearings now lack adequate rigor because the panel majority does not stringently canvass most bar association input before votes or encourage robust interrogation or discussion of nominees. Those changes allow most of the controversial nominees to attain party-line committee and confirmation ballots.
Part III reviews the implications of judicial selection actions which President Trump and the Republican Senate majority have undertaken. This Part concludes that the White House and the upper chamber have definitely created records for appointing conservative, young, well qualified appellate court jurists but continue to underemphasize district court and emergency vacancies as well as minority nominations and confirmations. President Trump and Senator McConnell correspondingly remind the public that they have appointed numerous exceptionally conservative, young, and capable judges and capitalize on these successes to further their political agendas. However, both the chief executive and the Majority Leader systematically disregard their failures to place jurists in substantial trial court and emergency openings and to confirm minority judges, particularly in blue states. This Republican inaction undermines presidential discharge of constitutional responsibility to nominate and confirm jurists, senatorial fulfillment of constitutional responsibility to advise and consent, and satisfaction of the judiciary’s critical responsibility to expeditiously, inexpensively, and fairly decide voluminous caseloads. President Trump also continues railing at manifold jurists for dutifully overturning White House efforts to govern in ways that the chief executive believes will greatly improve his presidential reelection efforts. Those phenomena additionally politicize the federal courts and sharply undercut citizen respect for the presidency, the Senate, the judiciary, the nomination and confirmation processes, and the rule of law.
Because these factors can undermine the judicial selection procedures, Part IV posits numerous suggestions, which could rectify or ameliorate the substantial problems that Trump and the Republican Senate majority have created. The President and the Republican chamber need to revitalize true, dynamic “regular order.” This development could include efforts by President Trump and the Senate members to reinstate certain efficacious devices—notably, meticulous executive branch consultation of home state legislators respecting nominees, who might fill district court vacancies in their jurisdictions, and constructive ABA participation in selection—while comprehensively and cautiously refraining from activities that could distinctly eviscerate public regard for the branches of government and the selection processes. The chamber in turn must dutifully restore appellate court blue slips, thorough, rigorous committee hearings and discussions, and robust confirmation debates.
Republicans and Democrats should remember that 2020 comprises a presidential election year in which nominations and confirmations traditionally slow and can halt early in anticipation of a modified chamber and possibly a different chief executive. For instance, the GOP chamber members stopped President Obama’s efforts to appoint appellate court jurists following mid-June 2012, as Republican senators did not agree to conduct floor debates or confirmation votes. Four years later, the GOP majority neglected to approve a single court of appeals judge after January or any district court jurist following July 6. Because 2020 constitutes a presidential election year, it should be a propitious occasion for Republican and Democratic lawmakers to strongly consider the 2020 adoption of bipartisan courts, which become effective over 2021, as neither party will be certain which may capture the presidency and the chamber and, therefore, would capitalize on the reform. A bipartisan judiciary would allow the party that lacks White House control to submit a percentage of nominees in specific jurisdictions across the country. This action might be combined with legislation authorizing sixty-five new district court and five new appellate court positions, as recommended by the Judicial Conference of the United States and premised substantially on relatively conservative approximations of current case and work loads for federal appellate courts and district courts. Tethering bipartisan courts and myriad new slots would extend both parties incentives to cooperate; increase bench diversity vis-à-vis ethnicity, gender, sexual orientation, ideology and experience; and provide courts more judicial resources.
Another constructive approach could be altering the filibuster, which has been integral to the “confirmation wars” that have affirmatively plagued the judicial selection process for decades. This may encompass restoring sixty votes, rather than a majority, for cloture, which Senator Lindsey Graham (R-SC), the attorney who currently chairs the active Senate Judiciary Committee, provocatively remarked that he would favor, were the Senate to dutifully reinstitute a sixty-ballot threshold to invoke cloture regarding nominees during 2021. Closely related would be allowing filibusters only in “exceptional circumstances,” such as when nominees lack sufficient intelligence, ethics, independence, or judicial temperament to be excellent jurists, an idea that performed comparatively efficaciously in 2005.
If President Trump and the chamber eschew those suggestions to revive—and completely implement—distinctive regular order and establish federal court ideological balance again, Democrats can attempt to effectuate comparatively dramatic legitimate practices, which improve the White House nomination and Senate confirmation processes’ rigor while ensuring the appointment of highly qualified, moderate nominees. These might include Democratic Caucus retention of each district court blue slip, if (1) President Trump nominates candidates who lack sufficient qualifications, especially mainstream ideological perspectives and consummate ability, or (2) the Republican President and the GOP Senate majority neglect to restore appellate court slips, adequately consult more Democratic politicians from home states about vacant appellate court and district court positions, or closely examine their submissions for those openings or American Bar Association evaluations and ratings of individuals whom the White House nominates.
After this year, Republican and Democratic Senate and House members necessarily must seriously contemplate and carefully initiate promising, longer-term reforms of the judicial selection process. Permanent effectuation of a bipartisan judiciary and the institution of lasting filibuster change would be significant. If Democrats hope to extensively revitalize dynamic regular order and court of appeals ideological balance, they may need to directly recapture the White House and a majority in the chamber while capitalizing on numerous mechanisms—namely majority cloture ballots, two hours of post-cloture debate for trial level nominees, majority confirmation votes for judicial nominees, and a blue slip court of appeals exception—which the Republican chamber majority now deploys. […]
Carl W. Tobias, Keep the Federal Courts Great, 100 B.U. L. Rev. Online 196 (2020).