Trump matches Obama's appellate judicial appointment total in just 2 years, 10 months

The confirmation of Barbara Lagoa to the Eleventh Circuit today was President Donald Trump’s 48th appointment to the federal appellate bench.

Excluding the Federal Circuit,* President Barack Obama appointed 48 federal appellate judges in his entire eight years in office. Mr. Trump has appointed 48 federal appellate judges in just 2 years, 10 months.

There are several overlapping reasons why Mr. Trump has been able to accomplish this.

Senate priorities. This is not only Senate Majority Leader Mitch McConnell making it a priority to confirm judges. It’s also the fact that the Senate has precious few other priorities at the moment. The Democratic-controlled House is not passing legislation designed for the Republican-controlled Senate to enact or that the two could meaningfully compromise on. That leaves one-chamber activity in the Senate the most useful path forward.

Less emphasis on blue slips and home-state deference. This takes a couple of forms. First, the White House is not necessarily deferring to the preferred nominees of home state senators. That can slow the process if senators have a process to review candidates before sending them to the White House, which then must review the candidates and make a nomination. It can also slow the process if there are bipartisan compromises to make. The White House, however, has not been deferring to home-state preferences—at least, not always, and far less with Democratic-controlled Senate delegations. On top of that, the “blue slip” process—where a home-state senator could refuse to approve of a nominee, and the Senate Judiciary Committee had, at times in history, deferred to what effectively amounted to a home-state veto—was shed (for now) for appellate nominees. That not only allows for the Senate as a whole to consider nominees without one state’s senator blocking the process, but it means district court nominees who do face blue slip treatment aren’t being sent to the Senate as a whole—and that means the Senate prioritizes appellate nominees all the more.

Abolishing filibusters. Before 2013, cloture votes for judicial nominees requires a three-fifths vote (60 Senators) in the Senate under Senate rules. In 2013, due to escalating use of the filibuster in judicial nominations, Senate Majority Leader Harry Reid led an interpretation of the rule that effectively abolished the filibuster for lower-court judicial nominees and required a simple majority vote for cloture (follow by a simple majority vote to confirm the nominee). (It also effectively abolished it for executive branch nominees. Mr. McConnell extended the abolition of the filibuster to Supreme Court nominees in 2017.) That has allowed judicial confirmations to occur more easily than in past years.

Lack of ABA deference. The Bush administration refused to pre-screen candidates with the American Bar Association. The Obama administration returned to that practice, and it withdrew candidates the ABA deemed “not qualified.” That resulted in delays for every nomination to go through ABA screening, and it meant that Mr. Obama saw at least 14 nominees rejected by the ABA, then withdrawn internally rather than sent them to the Senate Judiciary Committee. That also meant he had to find new nominees and effectively start the process over again. Without deferring to the ABA, Mr. Trump can move much more quickly. (I’m not convinced the ABA process adds any value.)

Executive priorities. Mr. Obama was criticized for moving very slowly on judicial nominations. In his first nine months in office, for instance, he made just 23 nominations and just three confirmations—only one to the appellate bench. Compare that to President George W. Bush, who had 95 nominations and eight confirmations in his first term. Mr. Obama had other legislative and executive priorities—including addressing the recession, enacting health care legislation, and seeking to shut down Guantanamo Bay—but he also deferred to the ABA and the Senate, which slowed the process further.

Greater number of vacancies. Mr. Obama saw no nominees confirmed in the last year of his presidency—a combination of Mr. McConnell’s “hardball” tactics in the Senate and Mr. Obama’s inability to seek a third term (and make this a salient campaign issue) due to the Twenty-Second Amendment. Mr. Trump certainly entered office with more vacancies than Mr. Obama (but, as noted, Mr. Obama was slow to nominate in the first place). But undoubtedly Mr. Trump also benefits from the timed retirements that have occurred early in his term from Republican-appointed judges taking senior status, including a number of Reagan administration nominees who are quite senior.

In all, then, there are a variety of reasons why appellate judicial confirmations have proceeded at a breakneck clip. It’s a convergence of a number of factors that give us the present federal judiciary. There are actually only a few vacancies on the federal court of appeals left, all with nominees, and all but one almost assured of confirmation in the next couple of months. District court vacancies—due to the blue slip process, the lower priority of Mr. McConnell, and other reasons—remain significant. What the 2020 election cycle will yield, and its impact on the federal judiciary, remains to be seen.

*The Federal Circuit has a unique and narrow jurisdiction compared to the rest of the federal courts of appeals, which are general appellate courts. You may want to include them—President Obama appointed seven to the Federal Circuit (55 counting the 48 other appellate appointments), and President Trump has nominated zero. I exclude them but would not fault you for including them.