Which of the following statements about federal judicial appointments is true

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• The Constitution is the supreme law of the land and lays down the basic framework for the three organs of state, namely, the Executive, the Legislature and the Judiciary.
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• The Legislature comprises the President and Parliament and is the legislative authority responsible for enacting legislation. Parliament is made up of elected, non-constituency and nominated Members of Parliament. The President’s assent is required for all bills passed by Parliament and he may in his discretion withhold assent to certain bills.
• The Judiciary consists of the Supreme Court and the State Courts and the head of the Judiciary is the Chief Justice. Judicial power in Singapore is vested in the Supreme Court and in such subordinate courts as may be provided for by any written law for the time being in force.

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A December 24 presidential tweet boasted “187 new Federal Judges have been confirmed under the Trump Administration, including two great new United States Supreme Court Justices. We are shattering every record!” That boast has some truth but, to put it charitably, a lot of exaggeration.

Compared to recent previous administrations at this same early-fourth-year point (first term only), the Trump administration and the Senate have:

• seated more life-tenured judges than all but one predecessor, but rank in the middle of the pack as to proportion of judgeships filled;
• had a significant but not revolutionary impact on the party-of-appointing president composition of the appellate judiciary, and less of an impact, by that measure, on the district courts;
• put younger judges on the courts of appeals, which, along with changes in Senate procedure, will strengthen the conservative make-up of the appellate judiciary;
• given more attention to the courts of appeals than district courts, and given more attention to district court vacancies in red states than those in blue states

This post fills in some details. A follow-up will assess Trump’s fourth year prospects.

Appointments and percentage of seats filled

Trump’s and his supporters’ claim of a record number of judicial appointments is largely true. Table 1 displays his numbers against those of predecessors back to the Kennedy-Johnson administration, as of late January of the fourth year of each presidency’s first (and in two cases, only) term. Trump has appointed more court of appeals judges (50) than any predecessor, although Carter comes close, and more judges overall (187) than anyone but Carter, although Clinton comes close.

In how he compares himself to his predecessors, however, Trump doesn’t stop with raw numbers. He also claims that “percentage-wise, I blow everybody away except one person . . . George Washington.” Translation: “I’ve filled a greater percentage of statutory judgeships than all my predecessors except the one who filled all the judgeships created by the first Congress.” Not so: Table 1 shows that at this point, the 21% of statutory judgeships he has filled ranks behind Kennedy-Johnson and Nixon, Carter, and Clinton.

Table 1: Judicial Appointments, Late January, Fourth Year of First Term*

Court of Appeals% of circuit judgeshipsAll  courts% of all judgeshipsTrump5028%18721%Obama2514%12414%W. Bush2916%16819%Clinton3017%18622%Bush3117%12915%Reagan2316%12218%Carter4833%19729%Nixon3734%16532%Kennedy-Johnson2326%12731%Washington**——38>100%

*  Appointments to judgeships with tenure for what Article III calls “good Behaviour”— essentially life tenure rather than term-limited tenure.

**  Washington made multiple appointments to the 16 district and 6 Supreme Court judgeships in place 1789-1797 (there were no court of appeals); turnover was robust due to deaths and resignations.

Party-of-Appointing-President Balance

Table 2 shows that Trump has had a significant but not revolutionary impact on the composition of the courts of appeals.

Russell Wheeler

Nonresident Senior Fellow - Governance Studies

Table 2: Party-of-Appointing President Balance

  1/20/171/10/20

Circuit

Jships

Rappts

Dppts

Vacant

Rappts

Dppts

Vacant

When Trump took office, Republican-appointed circuit judges occupied 40% of the 179 statutory judgeships. Today they occupy 54%.

When he took office, Republican appointees were a majority of the active-status judges on four appellate courts—those of the 5th, 6th, 7th, and 8th circuits. Trump has flipped three others—the 2d, 3rd, and 11th.  As to the conservatives’ bete noir—the 9th circuit’s court of appeals—the Democratic-appointee majority has gone from 18-7 (with four vacancies) to a thin 16-13.

Still, Trump loyalists’ assertions that he is reshaping  the federal judiciary need context. He has strengthened Republican-appointee majorities on four courts, and achieved thin Republican-appointee majorities on three others. And these figures don’t include senior judges and visiting judges, who sit on the randomly selected, three-judge panels that decide almost all cases. And while party-of-appointing-president is one of the best predictors of judicial decisions, it’s still not  very precise.

Younger circuit appointees

Moreover, Trump’s court of appeals appointees to date are comparatively younger than his predecessors’ and thus may have more staying power. They continue an uneven decline in circuit judges’ age at time of appointment. Table 3 shows that appointees in the first three years of administrations in the 1960s and 1970s had median ages in the mid-50s. Trump’s are in their late 40s. Their likely above-average tenure in office will make it harder for Trump’s immediate successors—if Democratic—to reverse the party-of-appointing-president balance they inherit.

Table 3: Court of Appeals Judges’ Median Age at Appointment as of late January, Fourth Year

* The median age at appointment for Obama’s full 55-judge cohort was 52.8.

Whom has he replaced?

A president’s ability to reshape the courts depends partly on factors beyond the president’s control—including the nature of the available vacancies. Trump might have shifted the court-of-appeals balance more decisively had he been able to replace more Democratic appointees, but circuit vacancies haven’t accommodated him. Table 4a shows that less than two-fifths of his circuit judge appointees replaced Democratic appointees. By contrast, at this early fourth-year point, over half of Obama’s appointees replaced judges appointed by Republican presidents.

Table 4a: Replacing Court of Appeals Appointees of Other Party

In contrast to the Democratic appointee minority status on the courts of appeals, Democratic appointees remain a majority (317 or 53 percent of the 602 active-status district judges) sitting in late January. Trump has mainly replaced Republican-appointed district judges. In fact, Table 4b shows that at this point, most recent presidents have mainly replaced district judges appointed by their same-party predecessors, although all but Obama and Trump were also able to fill some newly created seats.

Table 4b: Replacing District Court Appointees of Other Party

What about the district courts?

The federal district courts, with their 673 statutorily authorized judgeships, are in many ways the backbone of the federal judicial system. Full-blown trials are now rare, but district judges decide motions to dispose of cases without trial, and oversee the pretrial processes in which cases get resolved.

Filling district vacancies is the priority of many lawyers and those whom they represent—commercial interests, law enforcement officials, criminal defendants, civil rights advocates and others. The Trump administration and its Senate allies, however, have given top priority to filling appellate vacancies, perhaps on the somewhat shaky view that the appellate courts make law that binds all judges in the respective circuits.

Trump inherited large numbers of circuit and district vacancies, thanks in large part to Senate Republicans’ unprecedentedly miniscule number of confirmations in the final two years of the Obama presidency. Table 5 shows vacancies during presidencies from Reagan to Trump—those in January of the first year and those in January of the fourth year—and the percentage increase or decrease.

For the second Bush, Clinton, and Reagan administrations, the decline in district vacancies outpaced the decline in appellate vacancies. Under Trump appellate vacancies fell by 94%, but district court vacancies declined by only 17%. Moreover, as recently as early December 2019, there were 87 district vacancies (not 71), an increase over the Inauguration Day figure. It appears that the Senate got serious about confirming district judges only when it essentially ran out of appellate nominees to confirm.

Table 5: Vacancies on Inauguration Day and in early January, Fourth Year, First Term

(Vacancies increased under the first President Bush because Congress created a large number of judgeships in December 1990, many of which remained unfilled a year later. The Obama administration was slow in getting nominations to the Senate, where they then faced minority party resistance.)

Circuit vacancies filled faster than district vacancies

The administration and the Senate took more time to propose nominees to fill district court vacancies than court of appeals vacancies, and more time to approve district court nominees than to approve circuit nominees. As in previous administrations, delay in submitting nominees was greater in states with opposite-party senators, but the greater delay in confirming such nominees (at least during the first three years) is a departure from practice under previous administrations.

Median days, vacancy to nomination

Under Trump, the median time to submit circuit nominees was 167 days after the vacancy became known; for district nominees it was 380. That difference surely reflects in part the decision by the administration and Senate allies to abandon—for circuit nominees—the so-called “blue-slip” prerogative. In Senates during previous administrations, that prerogative empowered senators of either party to shut down Senate processing of home-state judicial nominees to whom they objected. That now-abandoned practice encouraged administrations to negotiate and bargain with home-state senators. Making circuit judge blue slips inoperative reduced the need for time-consuming negotiation. Making them inoperative also decreased any bargaining power that home-state Senate Democratic (or moderate Republican) senators may have had to hold out for less conservative appellate nominees.

On the other hand, negotiations between the Trump administration and home-state senators seem to have continued in some fashion for district nominees. And one would expect more drawn-out negotiations with Democratic than with Republican senators. In fact and not surprisingly, district vacancy-to-nomination variations under Trump are similar to those under Obama, as Table 6a suggests. Under Trump, for example, those 80 vacancies in states with two Republican senators that got nominees, got them in median days of 254, versus 480 days for the 46 nominees to vacancies in states with two Democratic senators. Under Obama, vacancies in states with two Democratic senators got nominees faster than did vacancies in states with two Republican senators.

Table 6a: Median Days to Submit Nominations to District Court Vacancies—Through late January, Fourth Year (parenthetical indicates number)

* Counting from the date on which the incumbent announced that s/he would leave active status at some future point, the day of leaving active status if no announcement—or Inauguration day for inherited vacancies.

Median days, nomination to confirmation

Table 6b, though, reveals a new twist. At least for Obama district nominees submitted by late January 2012, median time to confirmation was about the same regardless of the make-up of the state’s Senate delegation: 195 days for nominees in states with two Democratic senators, and only slightly longer in states with one or two Republican senators.

For Trump district nominees, though, a clearer blue-state/red-state difference appears. The Senate moved nominees in states with two Republican senators to confirmation in 217 median days. It took 412 days for nominees in two-Democratic-senator states.

Table 6b: Median Days from Nomination to District Judge Confirmation—Through late January, Fourth Year (parenthetical indicates number)

Furthermore, it does not appear that the delay in confirming the district nominees from Democratic senator districts was because those nominees were particularly unpopular, at least as measured by Senate votes. Table 7 shows the distribution of negative votes for district nominees based on the make-up of the respective districts’ Senate delegations.

The low-opposition votes (0-10 “no” votes) were fairly evenly split among the four groups, but, of the 54 judges who got 21 or more negative votes, only one involved a nominee from a blue state (as measured by the Senate delegation). Pending a more thorough review of senators’ votes, it seems likely that the blue-state senators voted heavily against nominees from red states but that the Republican senators did not vote heavily against the blue-state district nominees. Nevertheless, the leadership apparently delayed voting on them, thus prolonging the vacancies.

Table 7: “No” votes for Trump’s Confirmed District Judges

A future post will assess the possible contours of nominations and confirmations in 2020.

Data for this paper come mainly from the Federal Judicial Center Federal Judge Biographical Directory (fjc.gov), the judicial vacancy data maintained by the Administrative Office of the U.S. Courts (uscourts.gov), and my own data sets. Thanks to colleague Sarah Binder for comments.

Note: In the original version of this post, “Table 4b: Replacing District Court Appointees of Other Party” quoted the number for President Trump as 88. The correct number is 133.

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