By Carl Tobias*
In the first presidential debate, President Donald Trump continued to multiply the number, and magnify the intensity, of the fabrications that have pervaded his presidency for nearly four years.[1]These prevarications were on full display regarding federal judicial selection. The United States Constitution expressly assigns the President responsibility to nominate and, with Senate advice and consent, appoint federal judges.[2] Moreover, federal judicial selection is one of very few areas in which Trump has attained considerable success, albeit at substantial cost to myriad courts, judges, litigants, and the nation.[3]
Trump insistently contended, “I’ll have approximately 300 federal judges and Court of Appeals Judges, hopefully three great Supreme Court judges, Justices. That is a record.”[4] However, these claims are not completely accurate. First, Trump has nominated and confirmed 218 federal court judges so far: three Supreme Court Justices, fifty-three appellate court judges and 162 district court judges.[5] Moreover, President Trump and the Senate significantly rushed Seventh Circuit Court of Appeals Judge Amy Coney Barrett’s nomination and confirmation processes. The President nominated then-Judge Barrett to the Supreme Court on September 29, and the Senate confirmed the nomination on October 26, promptly recessing to campaign after confirming no circuit, and merely one district, court nominee before they return on November 9.[6] Of course, if Democratic nominee Joe Biden captures the presidency and Democrats recapture a Senate majority, the people will have clearly spoken, which in turn should dictate that President Trump and the Republican Senate majority dutifully honor the popular will and refrain from confirming Trump judicial nominees in any lame duck session that Republicans might convene.[7]
Even should the Republican Party retain a Senate majority and conduct a lame duck session, which the GOP has scheduled to commence in mid-November, the calendar will prevent the confirmation of a comparatively small number of lower federal court nominees.[8] For example, the Thanksgiving, Christmas and New Year’s holidays mean that the Senate will have only a few days when the upper chamber will be in session to consider judicial nominees. Moreover, the new Senate will convene in early January, at which point the chamber will consume substantial time in organizing the body and preparing for the President’s January 20 inauguration. [9] Currently, only twelve nominees are awaiting confirmation votes on the Senate floor,[10] although the Senate did confirm one judge[11] and the Judiciary Committee did approve four nominees[12] during the week of October 19. Trump has nominated twenty additional district court candidates, but none of these individuals has received a hearing.[13] Furthermore, twenty-three district court vacancies lack nominees,[14] Trump has recently tapped surprisingly few district court nominees[15] and it may well be too late to nominate additional candidates in time for the Senate to confirm them before January 20.[16] In short, these phenomena mean that Trump’s total appointees will probably be considerably closer to 225 than to 300.
Trump’s contention that his administration has shattered judicial appointments records is only partially true. Trump did confirm the most appellate court judges in the first year of a presidency.[17]However, that achievement came at the expense of allowing more than 140 district court vacancies to accumulate, and for the number of “judicial emergencies” to eclipse seventy-five.[18] This neglect of the district courts has imposed enormous pressure on many courts, jurists, litigants and the nation, and indeed continues to plague them.[19] Moreover, Trump has confirmed thirteen percent fewer judges than Presidents Richard Nixon and Jimmy Carter appointed and percentages that resemble the confirmations attained by Presidents Bill Clinton, and George W. Bush at similar junctures in their first terms.[20]
Trump also could not resist the urge to “thank” President Barack Obama for leaving such a substantial number of federal appellate court and district court vacancies which the Trump Administration could fill. Trump declared: “when you leave office, you don’t leave any judges. I’d say, if you left us 128 openings, you can’t be a good president.”[21] This canard is untrue and misleading. First, the number is simply incorrect. There were 105 appellate court and district court vacancies and one Supreme Court opening upon Trump’s inauguration.[22] The Supreme Court vacancy existed because the Republican Senate majority refused to even consider D.C. Circuit Chief Judge Merrick Garland, Obama’s distinguished, mainstream Supreme Court nominee, for more than nine months in 2016.[23] The 105 appellate court and district court openings existed because the Republican Senate majority relentlessly obstructed President Obama’s 2015-2016 nominees, allowing confirmation votes on merely two appellate court nominees and eighteen district court nominees, the fewest lower court judges whom the Senate has confirmed since 1898.[24]
In sum, when voters cast ballots for President on November 3, they should remember that President Trump’s hyperbolic contentions respecting federal judicial selection typify his fabrications across so many other critical areas of presidential responsibility.
* Williams Chair in Law, the University of Richmond School of Law. I wish to thank Margaret Sanner for excellent suggestions, Jane Baber, Emily Benedict and Jamie Wood for excellent editing and research, the University of Richmond School of Law Library staff for excellent research, the N.Y.U. Journal of Legislation and Public Policy Quorum editors for excellent editing, Leslee Stone for excellent processing as well as Russell Williams and the Hunton Andrews Kurth Summer Research Endowment Fund for generous, continuing support. Errors that remain are mine alone.
[1] See Glenn Kessler, Salvador Rizzo & Meg Kelly, President Trump Has Made More Than 20,000 False or Misleading Statements, Wash. Post (July 13, 2020), https://www.washingtonpost.com/politics/2020/07/13/president-trump-has-made-more-than-20000-false-or-misleading-claims/;see generally Donald Trump & Joe Biden 1st Presidential Debate Transcript 2020, Rev (Oct. 1, 2020) [hereinafter “Transcript”], https://www.rev.com/blog/transcripts/donald-trump-joe-biden-1st-presidential-debate-transcript-2020.
[2] See U.S. Const., art. II, § 2; Transcript, supra note 1.
[3] Remarks by President Donald J. Trump on Federal Judicial Milestones, White House Off. Press Secretary (Nov. 6, 2019), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-federal-judicial-confirmation-milestones/; President Donald J. Trump Has Delivered Record Breaking Results for the American People in His First Three Years in Office, White House Off. Press Secretary (Dec. 31, 2019),https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-delivered-record-breaking-results-american-people-first-three-years-office/. See generally Carl Tobias, Keep the Federal Courts Great, 100 B.U. L. Rev. Online 196 (2020).
[4] Transcript, supra note 1; see Remarks By President J. Trump on Judicial Appointments, White House Off. Press Secretary (Sept. 9, 2020), https://www.whitehouse.gov/briefings-statements/press-briefing-press-secretary-kayleigh-mcenany-9-9-2020/.
[5] See Chris Cioffi, Trump Says He’s Close to 300 Judicial Confirmations. That’s Not Quite Right, Roll Call (Oct. 15, 2020), https://www.rollcall.com/2020/10/15/trump-says-hes-close-to-300-judicial-confirmations-thats-not-quite-right/; Confirmation Listing, Admin. Off. of the U.S. Courts, Judicial Vacancies (Oct. 1, 2020), https://www.uscourts.gov/judges-judgeships/judicial-vacancies/confirmation-listing; President Donald J. Trump Announces Judicial Nominees, White House Off. Press Secretary (Oct. 21, 2020), https://www.whitehouse.gov/presidential -actions/president-donald-j-trump-announces-judicial-nominees-102120/ (providing announcement of the White House’s intent to nominate Thomas Kirsch, whom Trump had earlier appointed to the position of United States Attorney for the Northern District of Indiana, to the Seventh Circuit to fill Judge Amy Coney Barrett’s vacancy upon her elevation to the Supreme Court). See also Chris Cioffi, McConnell: ‘We’re going to clean the plate’ on judges, Roll Call (Oct. 30, 2020), https://www.rollcall.com/2020/10/30/mcconnell-senate-judges-lame-duck/ (providing statement of Republican Senate Majority Leader Mitch McConnell (KY) saying “we’re going to fill the Seventh Circuit” vacancy).
[6] President Donald J. Trump Announces Intent to Nominate Judge Amy Coney Barrett to the Supreme Court of the United States, White House Off. Press Secretary (Sept. 26, 2020), https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-announces-intent-nominate-judge-amy-coney-barrett-supreme-court-united-states/; Nomination of the Honorable Amy Coney Barrett to be an Associate Justice of the Supreme Court of the United States; see One Nomination Sent to the Senate, White House Off. Press Secretary (Sept. 29, 2020), https://www.whitehouse.gov/presidential-actions/one-nomination-sent-senate-092920/; Nomination of the Honorable Amy Coney Barrett to be an Associate Justice of the Supreme Court of the United States; S. Judiciary Comm. (Oct. 12-15, 2020), https://www.judiciary.senate.gov/meetings/nomination-of-the-honorable-amy-coney-barrett-to-be-an-associate-justice-of-the-supreme-court-of-the-united-states; 166 Cong. Rec. S6,588 (daily ed. Oct. 26, 2020) (confirming Amy Coney Barrett to the Supreme Court); U.S. Senate, Democrats, Schedule for Pro Forma Sessions and Monday, Nov. 9, 2020 (Oct. 26, 2020), https://www.democrats.senate.gov/2020/10/26/schedule-for-pro-forma-sessions-and-monday-november-9-2020.
[7] The Senate is currently tentatively scheduled to return for a lame duck session of the 116th Congress, which commences the week after the presidential and Senate elections that will be conducted on November 3. Tentative 2020 Legislative Schedule, U.S. Senate, https://www.senate.gov/legislative/2020_ schedule.htm (last updated Dec. 4, 2019). See generally Carl Tobias, Confirming Judges in the 2016 Senate Lame Duck Session, 19 U. Pa. J. Const. L. Online 1 (2016).
[8] See sources cited supra note 7.
[9] The Senate is scheduled to convene on Jan. 3, 2021. U.S. Senate, Dates of Sessions (2020), available athttps://www.senate.gov/legislative/DatesofSessionsofCongress.htm. The presidential inauguration will be on Jan. 20, 2021.
[10] S. Exec. Calendar (Oct. 30, 2020), https://www.senate.gov/legislative/LIS/executive_calendar/xcalv.pdf.
[11] The Twitter GOP Senate Cloakroom first provided notice of cloture ballots on five district court nominees for the week of October 5. However, the Senate Republican leadership decided to postpone the meeting until the week of October 19 because of a Covid-19 outbreak, which many observers have attributed to the White House ceremony in which President Trump announced Judge Barrett’s Supreme Court nomination. See Larry Buchanan et al., Inside the White House Event Now Under Covid-19 Scrutiny, N.Y. Times (Oct. 3, 2020), https://www. nytimes.com/interactive/2020/10/03/us/rose-garden-event-covid.html; Peter Baker, In Swearing In Barrett, Trump Defiantly Mimics ‘Superspreader’ Rose Garden Ceremony, N.Y. Times (Oct. 26, 2020), https://www. nytimes.com/2020/10/26/us/politics/trump-barrett.html During that week, the Senate apparently planned to re-schedule floor debates and confirmation votes on some or all of the five nominees, but the chamber managed to confirm merely one, Judge Michael Newman to the Southern District of Ohio. 166 Cong. Rec. S6,397 (daily ed. Oct. 22, 2020); see Andrew Kragie, Sens. Approve Judge for Ohio, Advance More BigLaw Picks, Law360.com (Oct. 22, 2020), https://www.law360.com/government contracts/articles/1321667/sens-approve-judge-for-ohio-advance-more-biglaw-picks; U.S. Senate, Democrats, Schedule for Pro Forma Sessions & Mon., Oct. 19, 2020 (Oct. 5, 2020), https://www.democrats.senate.gov/2020/10/05/schedule-for-pro-forma-sessions-and-monday-october-19-2020.
[12] The Senate Judiciary Committee was scheduled to discuss and vote on four district court nominees at the panel’s October 1 Executive Business Meeting. However, the committee postponed those discussions and ballots which the Democratic members, as the minority party, held over at the October 15 meeting until the following meeting on October 22 under the committee rules. Moreover, the committee discussion and ballot on Judge Barrett’s nomination could have consumed all available time on that day, but they did not because Democratic members boycotted the session. Donna Cassata, Democrats Boycott Committee Vote on Barrett Nomination to the Supreme Court, Wash. Post (Oct. 21, 2020), https://www.washingtonpost.com/politics/courts_law/senate-court-barrett-democrats/2020/10 /21/c20edce4-13e0-11eb-bc10-40b25382f1be_story.html. Therefore, the committee approved the four nominees without discussion on identical votes of twelve ayes and ten “not present.” S. Judiciary Comm., Exec Business Mtg. (Oct. 22, 2020), https://www.judiciary.senate.gov/meetings/10/22/2020/executive-business-meeting; see Kragie, supra note 11.
[13] See Current Judicial Vacancies, Admin. Off. of the U.S. Courts, Judicial Vacancies (Nov. 1, 2020), https://www.uscourts.gov/judges-judgeships/judicial-vacancies/current-judicial-vacancies.
[14] Id.; see Future Judicial Vacancies, Admin. Off. of the U.S. Courts, Judicial Vacancies (Nov. 1, 2020), https://www.uscourts.gov/judges-judgeships/judicial-vacancies/future-judicial-vacancies (documenting merely two future district court vacancies that will become open in January 2021 when judges assume senior status).
[15] See President Donald Trump Announces Judicial Nominee, White House Off. Press Secretary (Oct. 1, 2020), https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-announces-judicial-nominee-10/01/20/ (providing announcement of the White House’s intent to nominate the most recent federal district court judicial nominee whom the administration neglected to officially nominate until Oct. 23); Two Nominations Sent to the Senate, White House Off. Press Secretary (Oct. 23, 2020) https://www.whitehouse.gov/presidential-actions/two-nominations-sent-senate-102320/. Trump nominated no district court candidates in August and one district court candidate in July, although the White House did nominate seven district court candidates in September. Current Judicial Vacancies (Aug. 1, 2020), https://www.uscourts.gov/judges-judgeships/judicial-vacancies/current-judicial-vacancies; id. (Oct. 1, 2020), https://www.uscourts.gov/judges-judgeships/current-judicial-vacancies; see supra note 5 (nominating Thomas Kirsch as Seventh Circuit replacement for Judge Barrett).
[16] The average time from nomination to confirmation for Trump district nominees has been 217 days for vacancies in states with two GOP senators and 412 days for openings in states with two Democratic senators. Russell Wheeler, Judicial Appointments In Trump’s First Three Years:Myths and Realities, Brookings Instit. (Jan. 28, 2020), https://www.brookings.edu/blog/fixgov/2020/01/28/judicial-appointments-in-trumps-first-three-years-myths-and-realities/.
[17] 163 Cong. Rec. S8,022 (daily ed. Dec. 14, 2017) (statement of Sen. Feinstein) (contending that President John Kennedy appointed eleven appellate court judges during his first year).
[18] See Vacancy Summary for June 2018, Admin. Off. of the U.S. Courts, Judicial Vacancies (June 1, 2018), https://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2018/06/vacancies; Judicial Emergencies for August 2018,Admin. Off. of the U.S. Courts, Judicial Vacancies (Aug. 2018), https://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2018/08/emergencies.
[19] Tobias, supra note 3.
[20] Russell Wheeler, How Close is President Trump To His Goal of Record Setting Judicial Appointments?, Brookings Inst. (May 5, 2020), https://www.brookings.edu/blog/fixgov/2020/05/05/how-close-is-president-trump-to-his-goal-of-record-setting-judicial-appointments/.
[21] Transcript, supra note 1.
[22] Vacancy Summary for February 2017, Admin. Off. of the U.S. Courts, Judicial Vacancies (Feb. 1, 2017), https://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2017/02/vacancies.
[23] Robin Bradley Kar & Jason Mazzone, The Garland Affair: What History and the Constitution Really Say About President Obama’s Power to Appoint a Replacement for Justice Scalia, 91 N.Y.U. L. Rev. Online 53 (2016). See generally Carl Tobias, Confirming Supreme Court Justices in a Presidential Election Year, 94 Wash. U. L. Rev. 1093, 1103 (2017).
[24] Vacancy Summary for January 2017, Admin. Off. of the U.S. Courts, Judicial Vacancies (Jan. 1, 2017), https://www.uscourts.gov/judges-judgeships/judicial-vacancies/archive-judicial-vacancies/2017/01/summary; see 163 Cong. Rec. S8,021-24 (daily ed. Dec. 14, 2017); Christopher Kang, Republican Obstruction of Courts Could Be the Worst Since the 1800s, Huffington Post (Apr. 21, 2017), https://www.huffpost.com/entry/republican-obstruction-of_b_9741446