Trump’s Appalling Judges are Getting Confirmed Faster than Ever
By Nathan Kasai
Faced with a razor thin majority and an inability to move legislation, Senate Majority Leader Mitch McConnell has made confirming President Trump’s judicial nominees his top priority. And despite the blistering pace at which he is reshaping the judiciary, he won’t stop complaining that Democrats are obstructing the confirmation process. This claim is absurd. After Democrats ended the filibuster for district and appeals court nominees in 2013, district and circuit court nominees only needs 50 votes (with the Vice President breaking the tie) to be confirmed by the Senate. Republicans changed those rules for Supreme Court nominees in 2017 as well. And McConnell’s party has a 51 seat majority — meaning he should have the votes to pass a nominee without winning the support of a single Democratic Senator.
So whenever a confirmation fails, it’s because at least two Republicans opposed him or her. It’s mathematically impossible for Democrats to block a nomination alone. And it’s ludicrous for McConnell to try and shift the blame. But here’s a rundown of what’s really going on around Trump’s judicial nominations.
Lightning Fast Confirmations
When considering confirming lifetime appointments, Senators need the opportunity to carefully consider and question the records of individuals who could sit on the bench for decades and preside over hundreds of important cases of federal law. But the Senate under McConnell is confirming Trump’s nominees at breakneck speeds. The current rate of confirmation out-paces any past administration, averaging more than one appellate confirmation per month. By comparison, the Senate is on pace to confirm 150% more appellate nominees under Trump in his first two years than it did in Obama’s first two years with a Democratic Senate. McConnell also allowed just 20 district and appeals court confirmations total in President Obama’s last two years– a historic low. Trump, in contrast, has had 21 appeals court judges confirmed already, less than a year and a half into his presidency. And these judges will have a substantial impact on American law. While the Supreme Court decides only around 80 cases per year, appellate courts decide a staggering 58,000 cases annually.
In McConnell’s quest to speed through as many confirmations as possible, he’s also thrown Senate protocol by the wayside, ignoring the longstanding blue slip tradition which prevents confirmation of a judge to a lifetime appointment if a home-state Senator objects to the nomination. Republican and Democratic majorities in the Senate have respected blue slips in both Republican and Democratic presidencies for decades, which is reasonable given that these judges will decide cases that affect the constituents of these Senators for years to come. But during the Trump era, the Senate has already confirmed two federal judicial nominees over the objection of their home-state senators.
So when McConnell whines that Democrats are delaying and obstructing Trump’s judicial nominations, it’s unclear what he could possibly mean. Nominations are moving faster than they have under any other modern president.
Shockingly Problematic Nominees
The Senate has a critical constitutional obligation to vet those who may serve for decades through a process called “advise and consent;” it isn’t supposed to be a rubber stamp for the President’s nominees. And Trump has sent some judges who are in a category of “bad” that’s unique to themselves. This isn’t simply a disagreement over legal philosophies. Take the American Bar Association (ABA), a non-partisan group of lawyers which has rated the qualifications of federal judicial nominees since 1989. Judges are rated “well qualified,” “qualified,” or “not qualified.” Their ratings aren’t based on legal or political ideology, but on basic qualifications to sit on the federal bench. But still, four of Trump’s nominees have been rated “not qualified” by them, and two of those were rated unanimously. For context, just 16 nominees have been rated “not qualified” since the ABA first started rating nominees and outside of Trump’s nominees, only two nominees have ever received the rating unanimously.
Beyond the poor ratings from the ABA, an unacceptable number of Trump’s nominees also have views that should be disqualifying no matter who nominates them. Just to name a few:
- Thomas Farr (Pending): · As the go-to lawyer for voter suppression in North Carolina, Thomas Farr defended North Carolina’s voter ID law that was found to be unconstitutional for targeting African American voters “with almost surgical precision.” He also failed to disclose to the Senate that he defended a political campaign that sent over 100,000 post cards, telling — mostly African American — voters they weren’t eligible to vote and would be committing voter fraud if they tried to do so.
- Wendy Vitter (Pending): When asked in her Senate testimony if Brown v. Board of Education — the landmark case that desegregated America’s schools — was correctly decided, Wendy Vitter dodged the question. Instead of unequivocally saying that segregation has no place in our education system, as numerous conservative nominees from Chief Justice John Roberts to Justice Neil Gorsuch did, she gave a canned answer that she didn’t want to opine on which Supreme Court cases were correctly decided.
- John Bush (Confirmed): Now sitting on the 6th Circuit Court of Appeals, Bush previously equated Roe v. Wade (the case establishing constitutional protections for a woman’s right to an abortion) to Dred Scott (the case upholding slavery nationwide and denying citizenship to African Americans). He also vocally opposed marriage equality for gay and lesbian couples, but was still confirmed on a party-line vote despite his seriously questionable views.
The President has shown a clear willingness to nominate judges whose commitment to upholding the law in a way that is fair to every American is questionable at best. The problem with these judges isn’t that Democrats want to block them just because they were appointed by Trump. The problem is that their views belong nowhere near a federal judge’s bench.
Trump’s Failed Nominees Lacked Republican Support
As explained above, it takes Republican opposition to actually stop a nomination under the current Senate rules. And that’s exactly how some of Trump’s most outrageous or least qualified judges have seen their nominations fall apart. Take Jeff Mateer, who was met with extreme skepticism by Senate Judiciary Committee Chairman, Chuck Grassley, after it came to light that he said transgender children were “proof that Satan’s plan is working.” The White House withdrew his nomination after Senator Grassley made it clear that Mateer lacked the votes to be confirmed.
Louisiana Senator John Kennedy voted against Gregory Katsas’s nomination to the D.C. Circuit Court of Appeals because he worked for the White House when he was nominated. He also vocally opposed Brett Talley, who was nominated to a district court seat in Alabama despite having never tried a single case in his entire career. To make matters worse optics-wise, he also didn’t disclose he was married to a White House staffer. Kennedy called Talley’s nomination “embarrassing” and said he would vote against him twice if he could.
Democrats also opposed the above nominees, and rightfully so, but the confirmations would have continued over those objections if the nominees had gained the support of a united Republican caucus.
Confirming a nominee to the federal judiciary gives them a lifetime appointment, and there should absolutely be thorough and tough vetting of every single nominee put forth for such a crucial role in our society. Opposition to one of Trump’s judicial nominees by Senators, Republican or Democrat, isn’t blanket obstructionism; it’s exercising the constitutional obligation to carefully scrutinize someone who will interpret and decide American law well beyond the end of Trump’s presidency.
Nathan Kasai is a policy advisor for social policy at Third Way.