Wave of Judicial Appointments Fulfills Trump Promise to Focus on Courts

Eight appellate court appointments most this early since Nixon

Don McGahn / Getty Images
November 13, 2017

Eight federal appellate judges confirmed, and a ninth on the way, mark the success of President Donald Trump's campaign promise to make putting conservatives on the court a top priority of his administration.

Trump's eight appellate court appointments are the most this early in a presidency since Richard Nixon, the New York Times reported.

The appointments are the product of an aggressive strategy led by White House counsel Don McGahn. McGahn and his team have focused on filling appeals court vacancies where Democratic Senators from Trump-voting states could be pressured to back nominees.

Senate Judiciary Committee Sen. Chuck Grassley (R., Iowa) has also been essential to the fast clip of nominations. In the past year, Grassley has organized three hearings with two appellate nominees, rather than the customary single nominee. Two-nominee hearings happened only three times total in the eight years of the Obama administration.

The nominees have strong academic credentials, the Times noted, as well as a history of clerking for conservative judges like the late Justice Antonin Scalia.

"We will set records in terms of the number of judges," Trump said in a recent White House speech. "There has never been anything like what we’ve been able to do together with judges."

"What makes this a unique opportunity in modern history is the sheer number of vacancies, the number of potential vacancies because of the aging bench, and the existence of a president who really cares about this issue in his gut," said Leonard A. Leo, executive vice president of the conservative law organization the Federalist Society, and an adviser on Trump's judicial appointments.

Trump entered office with 21 open seats on the federal appellate courts. That high number of vacancies was driven by Senate Republicans' refusal to confirm many appointees of President Barack Obama from 2015 onwards.

An additional six judgeships have opened since inauguration. Additionally, almost half the 150 active appeals court judges can take a semiretirement "senior" status, freeing up their seats for Trump-appointed replacements.

Exit polls suggest that conservatives concerned about the future of federal courts helped deliver Trump his electoral college victory last November. In the wake of Scalia’s death, Trump memorably promised to nominate his replacement from a list put together by the Federalist Society.

The burst of nominations has provoked controversy as Senate Republicans consider dropping several traditional practices.

That includes the use of so-called "blue slips," issued by Senators from the home state of a judicial nominee to give their assent before he proceeds to hearings. Democratic senators, including Sen. Al Franken (Minn.), have refused to return blue slips for several Trump nominees.

This has resulted in calls by Republicans to end the practice. They have also been critical of the American Bar Association, which customarily rates the qualification of judicial nominees, and which is perceived by many as being biased against conservatives. After the ABA returned "not qualified" rankings for two nominees, reports indicated that the White House is considering discouraging future nominees from releasing certain records to or interviewing with the group.

While these possible changes may be controversial, advisers like Leo remain focused on their central goal—taking advantage of an unprecedented opportunity to put conservatives on the bench.

"[Trump] understood that the American people cared about judges, and he for his own purposes cared very deeply about it and recognized that he could be a president who could help restore the judiciary to its proper role," Leo said.