During his 2016 presidential campaign, Donald Trump promised to nominate conservative judges to the federal bench.
So far, the President—with the help of U.S. Senate Republicans—is keeping his promise.
In addition to nominating Neil Gorsuch to the Supreme Court of the United States, President Trump and the Republican-led Senate also filled 12 vacancies in federal appeals courts in 2017. According to CNBC, President Trump has set a record for most federal appellate judicial nominees confirmed during a president’s first year in office. Furthermore, Edward Whelan of National Review states that the President’s “appellate appointees have, on the whole, outstanding credentials and are highly regarded in conservative legal circles.” Whelan opines that part of the reason for the President’s success in this area relates to recent growth in the conservative legal movement; because of that growth, Whelan indicates that “the pipeline is bursting with superb candidates whose legal training, whether in law school or on the job, has been deeply influenced by [the late Justice Antonin Scalia and Justice Clarence Thomas] and by the Federalist Society.”
Whelan notes that Senate Democrats unwittingly helped the President make progress with his judicial nominees. In 2014, under the leadership of then-Senate Majority Leader Harry Reid (D-NV), Senate Democrats voted to allow nominations for positions on federal trial courts and appeals courts to advance to the Senate floor by a simple majority vote instead of the previously-required 60-vote supermajority. At the time, Senate Republican Leader Mitch McConnell (R-Kentucky) warned his Democratic colleagues that they would regret this decision. It seems likely that Sen. McConnell was correct; this rule change has made it impossible for Senate Democrats to filibuster President Trump’s judicial nominees.
In recent months, Senate Judiciary Committee Chair Chuck Grassley (R-IA) has taken another step to streamline the confirmation process and overcome partisan efforts to create logjams for the President’s judicial nominees. In November 2017, Chairman Grassley announced that he would not allow judicial nominees to be blocked from consideration by the failure of a Senator from the nominee’s home state to submit a “blue slip” signifying the Senator’s approval of that nominee. According to TheHill.com, “[home-state] senators have historically been able to block nominees by refusing to return a blue paper of approval to the committee. It’s a courtesy, rather than a formal Senate rule, and whether it’s followed is entirely up to whoever helms the Judiciary Committee.” Chairman Grassley’s decision makes perfect sense, as no individual senator should be able to block a judicial nomination from advancing. Thus far, two judicial nominees have advanced without receiving blue slips. In January 2018, David Stras was confirmed to the Eighth Circuit Court of Appeals despite not receiving a blue slip from one senator from his home state. In February, the President’s nomination of Michael Brennan to the Seventh Circuit Court of Appeals was approved by the Senate Judiciary Committee despite the lack of a blue slip from Sen. Tammy Baldwin (D-WI).
While the judicial nomination process did not work perfectly over the past year, both President Trump and the U.S. Senate should be applauded for their efforts to fill existing judicial vacancies with high-quality candidates that respect the Constitution.