President Donald Trump has repeatedly boasted about his success in getting federal judges confirmed, while at the same time complaining that Senate Democrats are slow-walking his judicial nominees.
But a report issued this month by the nonpartisan Congressional Research Service indicates that while the average time for confirmation is historically high, Trump’s appointees were confirmed faster than in President Barack Obama’s first year.
Trump has also boasted about the “gift” of so many judicial vacancies left for him by Obama, suggesting that “maybe [Obama] got complacent” toward the end of his presidency. In reality, the reason Trump was left so many vacancies is that Republicans virtually stopped confirming federal judges appointed by Obama during his final two years as president.
Boasting and Complaining
In speeches, interviews and tweets, Trump regularly boasts about the number of confirmed federal judges as a sign of his success. Just as often, Trump criticizes Senate Democrats — and Senate Democratic Leader Chuck Schumer, in particular — for “obstructing” or “slow-walking” his judicial appointments.
Here are a few examples:
- At an Oct. 16, 2017, press conference: “But something that people aren’t talking about is how many judges we’ve had approved, whether it be the court of appeals, circuit judges, whether it be district judges. We have — tremendous — right now under review; the Democrats are holding them up beyond anything — beyond comprehension, they’re holding them up. I mean, frankly, they have terrible, terrible policy — terrible policy — and perhaps they’re not even good politicians, but they are good at obstruction. So I looked at some of these numbers, between the judges — and I want to say that we will set records in terms of the number of judges.”
- In a March 14 tweet: “Hundreds of good people, including very important Ambassadors and Judges, are being blocked and/or slow walked by the Democrats in the Senate. Many important positions in Government are unfilled because of this obstruction. Worst in U.S. history!”
- In remarks at the NRA’s Leadership Forum on May 4: “In my first year, I nominated, and the Senate confirmed, more circuit judges than any new administration, by far, in history. And we will have the all-time record very soon.”
- At an April 28 rally in Michigan: “We’re appointing judges like I guess never before has anything happened like what we’re doing on great conservative Republican judges. We’re setting records and by the time we finish, I think we will have the all-time record.”
- In an April 26 interview on Fox News: “Chuck Schumer and the group take, you know, years to approve them — years. We have judges that are waiting. Top of the line people. The best people in our country and by the way, they’re going to be approved, but they take them out until the very, very end.”
This week, Schumer fired back.
“Well, you know, they can’t have it both ways,” Schumer said during a press conference on May 15. “They can’t brag that they put in more judges than anybody else and then, at the same time, say they’re not getting — they’re being obstructed. So they ought to figure out where they’re at.”
Judges in Trump’s First Year
On May 2, the nonpartisan Congressional Research Service released a report, “U.S. Circuit and District Court Nominations During President Trump’s First Year in Office: Comparative Analysis with Recent Presidents,” that provides some historical context.
CRS Finding: Trump had the most circuit court confirmations of any first-year president since at least Harry Truman.
The report found that in his first year, Trump nominated 19 people to the U.S. circuit court of appeals, 12 of whom were confirmed during his first year; and he nominated 49 people to U.S. district court judgeships, six of whom were confirmed in Trump’s first year.
The 12 circuit court confirmations is the most for any first year president dating to at least 1945, CRS said.
A Los Angeles Times analysis concluded, “One year into his presidency, Donald Trump is among the most successful presidents when it comes to appointing federal judges.” The analysis found Trump ranked sixth out of 19 top ranking presidents for the highest number of federal circuit and district court judges appointed in their first year.
CRS Finding: Trump’s judicial nominees were confirmed more quickly than Obama’s.
According to CRS, in Trump’s first year it took an average of 115 days and a median of 109 days between nomination and confirmation. (Median is the midpoint, meaning half took more than 109 days and half were less.)
That’s a relatively long wait time by historical standards, but it’s less time — by average and median — than for those appointed by Obama in his first year. (Both Trump and Obama enjoyed a Senate majority from their own party in their first year.)
“Of the four Presidents included in the table, President Trump’s first-year nominees had the second longest average and median number of days from nomination to confirmation (President Obama’s nominees had the longest average and median — 137 and 130 days, respectively),” the CRS report said.
The CRS report also notes that, “The average and median number of days from nomination to confirmation for President Trump’s first-year nominees represent a departure from the upward trend in the length of time first-year nominees waited to be confirmed during the previous three presidencies. Specifically, it is the first instance over the past several presidencies in which the average and median wait times from nomination to confirmation of a President’s first-year nominees were both shorter than the average and median wait times of his immediate predecessor’s first-year nominees.”
CRS Finding: Half of Trump’s circuit court nominees were approved in less than 100 days – the highest percentage of any president since Bill Clinton.
It also marks the first time since 1993 that at least half of a president’s first-year circuit court nominees were confirmed in less than 100 days, CRS noted. Six of Trump’s 12 circuit court nominees were approved in less than 100 days, but none of Obama’s three and only two of Bush’s six were approved that quickly, the report found.
The wait times for district court nominees have been decidedly longer for Trump. Two district court nominees, Dabney L. Friedrich and Scott L. Palk, waited 173 and 171 days, respectively, the longest wait times since 2001 in a president’s first year.
Russell Wheeler, a visiting fellow at the Brookings Institution’s Governance Studies Program and president of the Governance Institute, provided us more up-to-date data on Trump’s federal court nominees.
As of May 16, Trump had 21 circuit judges confirmed, including two earlier this week, Wheeler said. The median from nomination to confirmation of the circuit court judges was 131 days. Trump has had 17 district court judges confirmed with a median confirmation length of 180 days.
At the same point in his presidency, Obama had 16 district confirmations with a median length of 125 days. The median for his nine circuit confirmations was 218 days, Wheeler said.
“The important point is that median days to confirmation have been increasing steadily [for presidents leading up to Trump],” Wheeler said. “So far, Trump confirmations have been quicker.”
CRS Finding: A higher percentage of Trump’s district court nominees were less qualified than Obama’s, while the percentage of qualified circuit court judges was about the same.
CRS made several other observations about Trump’s federal court nominees compared to his immediate predecessors.
Among Trump’s 19 nominees for circuit court judge, 84 percent received a rating of well-qualified by the American Bar Association. That’s about the same percentage as Obama’s (83 percent). However, among Trump’s 49 district court nominees, just 53 percent were rated well-qualified (compared to 86 percent from Obama).
CRS Finding: Trump’s judicial nominees face more procedural opposition.
CRS also found more general opposition to Trump’s nominees by Democrats.
“Floor consideration of U.S. circuit and district court nominations during the first year of the Trump presidency frequently involved the use of the cloture process to reach Senate confirmation,” CRS wrote.
A cloture motion is used to limit debate and requires three-fifths, or 60 votes, to pass. In Trump’s first year, CRS said “cloture was used for each of the 12 circuit court nominations that received a final up-or-down vote and for 5 of the 6 district court nominations that received a final vote. In contrast, during the first years of the other three presidencies included in this report’s analysis, the cloture process was used once to reach an up-or-down vote on a circuit or district court nomination.”
Even so, as we said, Trump’s nominees took less time to be confirmed than Obama’s.
“Additionally,” CRS wrote, “the confirmation of nominees always occurred by roll call vote (rather than by unanimous consent or voice vote) and, for most circuit court nominations, was marked by a relatively high number of ‘nay’ votes among Senators not belonging to the President’s party.”
We should also note that Trump usually couches his complaint about Democrats obstructing judicial nominees with a more general complain about Democrats slow-walking all of his government appointees.
A joint project of the Partnership for Public Service and the Washington Post tracks roughly 600 “key executive branch nominations through the confirmation process.” According to the project’s data, as of May 17, the Senate had confirmed 426 of his appointments, with another 195 pending. The average time to confirm was 85 days — 18 days longer than Obama’s and longer than for former Presidents George W. Bush, Bill Clinton and George H.W. Bush.
But, as we wrote in “Who’s to Blame for Slow Confirmations?” in October, Trump and the Democrats both share some blame for the longer confirmation process under Trump.
Trump also revises history when he talks about the number of vacancies on the federal court he inherited from the Obama administration.
Here’s how Trump put it during a fundraiser in Missouri on March 14.
Trump, March 14: So I come and there’s this whole pile of papers on my desk – these are federal judges, these are applications. I said, “How many do we appoint?” “145.” “145!” Because for two years, two and a half years, almost none were appointed by President Obama. So I say thank you, President Obama.
Two weeks later, Trump expounded on the same topic during a speech in Ohio.
Trump, March 30: You know, when I got in, we had over 100 federal judges that weren’t appointed. Now, I don’t know why Obama left that. It was like a big, beautiful present to all of us. Why the hell did he leave that? Maybe he got complacent.
But now we have about 145 federal district judges. We have 17 court of appeals judges. And as I said, we have the one Supreme Court justice. But think of 145 district judges. That’s world-changing, country-changing, USA-changing. And we’re going all out. We have unbelievably talented, smart, great people being put in those slots.
But we were left a present. I never said this before. It was like the gift from Heaven. We were left judges. They’re the ones that judge on your disputes. They judge on what’s fair on the environment and what’s not fair; where they’re going to take your farms and factories away, and where they’re not. Amazing. It was the gift. Thank you very much, President Obama. We all appreciate it. Thank you. What happened? How did he do that? How did he do that?
That’s a high number, and according to the Federal Bar Association it is “straining the capacity of the federal courts to administer justice in an adequate and timely manner.”
But is Obama to blame for the high number of vacancies? No, it was not the result of complacency by Obama, as Trump suggested, but rather resistance to Obama’s judicial nominations from Senate Republicans who took over a majority during the last two years of Obama’s presidency.
“On the matter of obstruction, consider why Trump has so many vacancies to fill: because Republicans, when they took control of the Senate in 2015, practically stopped confirming judges,” Wheeler, from Brookings told us. “They confirmed 18 in those two years. In the final two years of Reagan’s eight years, with Democrats in the Senate majority, 83 confirmations. With Clinton, in final two years, with Republicans in the majority, 73. In Bush’s final two of eight years, with Democrats in the majority, 68.”
We should also note that Republicans blocked Obama’s attempt to fill a Supreme Court opening. Obama nominated Judge Merrick Garland to the Supreme Court in March of 2016, but the Senate Republicans refused to consider his nomination.
In early January 2017, just before Trump took office, there were 59 federal court nominees pending. That’s why Trump inherited so many vacancies.