The Constitution gives to the president the power to appoint federal judges, who then serve an average of nearly 25 years. While expanding judicial power naturally expands conflict over judicial appointments, the opposition to President Trump’s judicial nominees is of a different order altogether.
Senators opposing Trump’s judicial nominees cannot pretend that they are not qualified. The American Bar Association’s ratings are useful here because several studies ( here, here, here, and here) have found systematic bias against Republican nominees. Overall, the ABA rated 63 percent of Trump nominees “well qualified” during his first two years, higher than Presidents George W. Bush or Bill Clinton. More than 74 percent of Trump’s nominees to the U.S. Court of Appeals were rated well qualified, compared to 71 percent for President Barack Obama, 66 percent for Bush, and 75 percent for Clinton.
Nor can senators claim that opposition to a president’s judicial nominees is the historical norm. Of the 85 judges confirmed during the 115th Congress, 46 received one or more negative votes. That’s more than during the first two years of every newly elected president in American history combined.
Then, there’s the myth that, well, each political party routinely opposes nominees from the other party’s president. Two different comparisons show that this doesn’t explain what has actually been happening in the real world of the judicial confirmation process.
The first compares how the judicial nominees of the last two Republican presidents fared in the Senate. During the 107th Congress (2001-02), the first two years of the George W. Bush administration, the Senate confirmed 59 judicial nominees with a roll call vote. Those 59 nominees together received a total of 100 negative votes from Democrats, an average of fewer than two per nominee.
During the 115th Congress (2017-18), the first two years of the Trump administration, the Senate confirmed 58 judicial nominees with a roll call vote. Those 58 nominees together received a total of 1,550 negative votes from Democrats, an average of nearly 27 votes per nominee.
So one side of the confirmation coin is the number of negative votes that nominees receive. The other side is the number of nominees that senators vote against. Each Democrat in the 107th Congress, for example, voted against an average of two Bush judicial nominees. But each Democrat in the 115th Congress voted against an average of 30 Trump nominees.
Democratic opposition was selective for Bush nominees, indiscriminate for Trump nominees. The president’s party obviously does not explain this full-on attack on Trump’s nominee. In fact, this opposition onslaught cannot be explained by any factors rationally related to the normal confirmation process.
From George Washington to Barack Obama, an average of 8 percent of judicial nominees confirmed during newly elected presidents’ first two years received any negative votes. That opposition jumped nine-fold to 54 percent for President Trump during the 115th Congress. The next-highest opposition tally is 33 percent during the first two years of President Martin Van Buren. (That was way back in 1837-38, for those of you who have never heard of him.) That 33 percent is a little misleading, though, since the Senate confirmed only three judges during the 21st Congress.
No, this reckless opposition has nothing to do with nominee qualifications. It cannot be dismissed as ordinary partisan differences. It’s radically different from anything in confirmation history. This unprecedented opposition to Trump judicial nominees can only be explained as opposition to Trump. Senate Democrats are using his nominees as proxies for Trump himself. The men and women nominated to serve in the federal judiciary are mere pawns in an extreme partisan power-play. As a result, the judiciary is more than 16 percent vacant, we are in the longest period of triple-digit vacancies in 25 years, and vacancies are 30 percent higher than when Trump took office.
This mindlessly partisan, because-we-can, obstruction is damaging the judiciary, the Senate, and everyone whose respect for, and trust in, their government continues to erode.
This piece originally appeared in The Washington Examiner