President Donald Trump recently boasted about the unusually high number of judicial appointments he has made so far, but in doing so he exaggerated and mischaracterized some of the facts:
- In terms of “quality and quantity,” Trump said his judicial appointments will be “just about No. 1 by the time we finish — No. 1 of any president, any administration.” That’s likely true for the “quantity”: A media analysis found he has filled circuit court vacancies at a faster rate than recent presidents.
- As for “quality,” that’s his opinion. But the American Bar Association has rated more of Trump’s appointees as “Not Qualified” than any other president in modern history.
- Trump also boasted that the average age of his newly appointed circuit court judges is “10 years younger than President Obama’s nominees.” That’s true now, because Obama’s circuit court judges were appointed years ago. But looking at the ages of the judges at the time they were appointed, Trump’s appointees were younger by about 4.5 years — not 10 years.
‘Quality and Quantity’
Trump’s comments came during a Nov. 6 press conference to celebrate the now more than 150 federal judges that have been appointed under his administration. During the press conference, Trump said that by the time he leaves office, he will have appointed more and better judges than any other president in history.
Trump, Nov. 6: But in terms of, I’d like to say, quality and quantity, we are going to be, I think, just about No. 1 by the time we finish — No. 1 of any president, any administration.
It is true that Trump has been quickly filling judicial openings. According to a Sept. 4, 2018, Washington Post analysis, Trump “has filled the influential circuit court judgeships at a faster pace than his recent predecessors.” In his less than three years in office, Trump has filled two Supreme Court openings, 43 circuit court vacancies and 111 district court judgeships, according to data collected by the Federal Judicial Center on Nov. 14. (FJC, “the research and education agency of the judicial branch of the United States Government,” updates this data nightly.) For comparison, Obama filled two Supreme Court positions, 55 circuit court vacancies and 269 district court openings in eight years.
While the quality of these judges is a matter of opinion, the ratings of Trump’s judicial nominees by the American Bar Association do not support his claim.
The ABA releases Federal Judiciary Ratings according to which Congress received the nomination. According to its website, “The Standing Committee rates each nominee ‘Well Qualified,’ ‘Qualified’ or ‘Not Qualified.’ Unanimous committee ratings appear as a single rating. In other situations, the rating from the majority or substantial majority (constituting ten to thirteen votes) of the Committee is recorded first, followed by the rating or ratings of a minority of the Committee. The majority rating is the rating of the committee.”
No judge nominated or confirmed during the Obama administration’s eight years received a majority “Not Qualified” rating by the ABA. However, nine of Trump’s judicial nominees received a majority rating of “Not Qualified.” Five of these nine nominees have since been confirmed. Two more are still in the nomination process, and two of them failed to be confirmed by the Senate.
Specifically, two appeals court judges appointed by Trump, Leonard Steven Grasz and Jonathan A. Kobes, received a “Not Qualified” rating by the ABA. Moreover, three Trump administration appointees to district courts received the same rating.
According to data compiled by FJC, only five presidents (Donald Trump, George W. Bush, Bill Clinton, Jimmy Carter and Lyndon B. Johnson) have had a judicial appointee confirmed with a majority ABA rating of “Not Qualified,” and none had as many as Trump’s five. Both Bush and LBJ appointed four judges the ABA rated “Not Qualified,” while Carter and Clinton both got three judges confirmed with the same rating.
As for the quantity of appointed judges, Trump again derisively thanked Obama for the large number of judicial vacancies he inherited when he came into office. But Trump’s gratitude is misplaced.
Trump, Nov 6: You know, it is true, when I first came to office — because of what I said before, that I’ve always heard how important it is the choice of judges and the number of judges. And in my first day, I said to one of our assistants, “How many judges do I have to pick? How many are there?” And I figured I’d hear none or one, maybe two. They said, “Sir, you have 142.” I said, “No, no, no, tell me truth. I want the truth.” (Laughter.) That was it. And I say: Thank you, President Obama, very much.
When Trump took office, there were 112 federal judicial vacancies. That’s a high number of vacancies, but as we have written before, that was not the result of complacency by Obama, but rather opposition to Obama’s judicial nominations from Senate Republicans who held a majority during the last two years of Obama’s presidency. Experts told us Senate Republicans confirmed far fewer judicial nominees in Obama’s last two years than had been confirmed in the last two years of previous presidents. As a result, in early January 2017, just before Trump took office, there were 59 federal court nominees pending. That’s why Trump inherited so many vacancies.
Trump also misleadingly boasted that his newly appointed circuit court judges are significantly younger than Obama’s, by an average of 10 years.
Trump, Nov. 6: The average age of my newly appointed circuit court judges is less than 50. They’re young, smart. That’s 10 years younger than President Obama’s nominees.
The same claim was made in a White House fact sheet released after the press conference. We reached out to the White House press office for evidence for this claim, but we did not get a response.
It’s unclear whether the administration meant to distinguish between “nominees” and “appointees” of each administration, but we have data on the confirmed appointees to evaluate this particular claim about the ages of the judges.
While it is true that Obama’s appointees are now on average 10 years older than Trump’s, Obama’s presidency began nearly 11 years ago in 2009. A more meaningful comparison is the average age of judicial appointments at the time the judges were confirmed. Using the same FJC data, we found that the average age of Trump’s circuit court judges was about 48.5 at the time they were appointed. Obama’s, on average, were about 53 years old. So Trump’s appointees, on average, are younger, but by about 4.5 years, not 10.
(FJC largely includes only the birth year, instead of full date of birth, for judges, making it impossible to calculate judges’ exact age at the time of their confirmation. However, this information does still tell us how old they would have been during the year they were confirmed.)
In a phone interview, Arthur D. Hellman, a University of Pittsburgh law professor who studies the federal judiciary, told us that this age difference is not particularly significant in terms of professional experience, but that being younger does give judges a longer time frame to utilize their lifetime appointments.
In addition to a lengthier judicial career, the age and particularly the youth of judicial appointees has another important political ramification, Hellman explained. Younger judges have a better opportunity to plan their retirement, giving them the ability to give up a spot for the president to fill if they are of the same party, or perhaps wait for a more favorable shift in executive power. Youth, in effect, gives judges who are more politically focused a better opportunity to ensure that their vacancy goes to someone of the same political party who will share their view.
Trump limited his comment about the youth of his judicial appointees to those for the circuit court. The circuit court, also known as the U.S. Courts of Appeals, is the second highest in the U.S. judicial system and often the last opportunity for legal disputes to be argued. The president also appoints judges to district courts — and typically in larger numbers.
In an article published in March, BuzzFeed found that the average age of all judges confirmed by the two administrations is much closer: Under Trump the average age at the time of appointment was 50 years old, and under Obama the average age was 51.
In terms of Supreme Court justices, the two administrations are also more similar in the ages of their appointments (albeit for a much smaller sample size). Trump and Obama both appointed two Supreme Court justices (who all currently sit on the Supreme Court). Trump appointed Brett Kavanaugh, who turned 53 during the year of his confirmation, and Neil Gorsuch, who turned 50. Similarly, Obama appointed Elena Kagan, who was 50 during the year of her confirmation, and Sonia Sotomayor, who became 55 in the same year she was confirmed.