12.28.2017 0

Trump Delivers on Judicial Nominees

By Richard McCarty

One of President Trump’s most important promises in last year’s election was to appoint conservative justices to the Supreme Court, and he followed through on that promise by appointing Neil Gorsuch to the nation’s highest court. But that major win has been followed by a string of less-heralded victories.

When Trump took office, there were 105 federal judicial vacancies, an unusually high number. But the high number of vacancies existed for very good reasons. In 2013, then-Senate Majority Leader Reid (D-Nev.) and the Democrat majority decided to end the filibuster for district and appellate court judgeships. They then proceeded to ram through President Obama’s liberal judicial nominees. Unsurprisingly, Republican Senators were furious at this breach of Senate protocol. And, of course, Obama continued to refuse to make any serious attempt to compromise with Republicans.

Once Republicans retook the Senate in 2014, they decided to make the Democrats pay for their games and slowed the judicial confirmation process. After Justice Antonin Scalia died in early 2016, Obama recognized that Republicans were unlikely to confirm a young, staunch liberal nominee to the Supreme Court. For this reason, Obama selected Merrick Garland, a bland liberal nearing retirement age. But it was too little, too late.

With Scalia’s death taking place in an election year, Senate Majority Leader McConnell (R-Ky.) and Senate Judiciary Chairman Chuck Grassley (R-Iowa) refused to consider Garland’s nomination. The American people would decide which party would replace Scalia, a conservative icon.

Trump seized on the opportunity and released the names of judges he would consider for the Supreme Court if he were elected President. In May of 2016, he published a list of eleven conservative judges; four months later, he updated the list adding ten more conservatives to it. Gorsuch was one of the latter group.

Days after he was sworn in, Trump nominated Gorsuch; of course, the Democrats still wanted to play games, so they attempted to filibuster the nomination. Unfortunately for them, McConnell and the Republican majority were sufficiently tired of the Democrats’ obstructionism, and they voted to end the filibuster for Supreme Court nominees and promptly proceeded to confirm Gorsuch.

Just last month, Trump once again updated his list of potential Supreme Court nominees adding five more names; and Trump may soon have to pore over his list to select another nominee. With three justices over the age of 79, another retirement could take place in the very near future. After all, the average age of the last three retirees was 78.

Since March, Trump has been nominating dozens of conservatives to the lower courts. As with Gorsuch, these nominees have been routinely praised by conservative and libertarian organizations. So far, 21 of Trump’s lower court nominees have been confirmed.

Of these 21 appointees, twelve were appointed to appellate courts, six were named to district courts, and three were appointed to a specialty court: the Court of Appeals for Veterans Claims. While twelve appellate court appointments might not sound like much, it is, in fact, a record for the first year of a presidency.

But the victories have not been easy for Republicans. Bitter Democrats continue to play their obstructionist games. One of tactics used has been to refuse the return of a blue slip for a nominee. Blue slips allow the Senators from the home states of nominees to express their acquiescence or staunch opposition to nominees. While the protocols have changed over time, blue slips from one or both home state Senators have been required for the consideration of judicial nominees in recent years. However, Judiciary Chairman Grassley has decided that Democrats are abusing the privilege and scheduled a hearing last month on an appeals court nominee in spite of the fact that one home state Senator, Al Franken (D-MN), refused to return his blue slip for the nominee.

After the damage inflicted on the Judicial Branch by Obama and his Senate allies, conservatives are once again making progress at restoring sanity to the courts. Best of all, because most federal judicial appointments are for life, the excellent work of Trump and Senate Republicans this year will pay dividends for decades.

Richard McCarty is Director of Research at Americans for Limited Government Foundation.

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