- One of President Donald Trump’s biggest wins in 2017 was his influence on the US judicial system.
- In 2018, it looks like he will be able to get even more judges confirmed.
In reviewing 2017, there were a number of areas in which President Donald Trump did not make the advances he was hoping to make when he campaigned for the Oval Office.
The Affordable Care Act still exists, funding is not secured to build a massive border wall, and little action has been taken against China in the trade realm.
But one area in which Trump’s first year in office can be rated as nothing short of a success is nominating and confirming judges to the federal bench.
2017 proved to be an all-out blitz from the administration in nominating judges to the circuit and district courts at a pace not seen in recent presidencies. Meanwhile, the Senate, particularly late in the year, moved at a breakneck pace to confirm those judges, setting a record for the most circuit court judges confirmed in a single year.
In doing so, the Trump administration bypassed traditional vetting mechanisms in the name of rapid-fire nominations — some of whom, as a result, had to be returned after nominees appeared to have conflicts, were unqualified, or simply appeared to be unprepared for what was to come in their Senate Judiciary Committee hearings.
But, for the most part, Senate Republicans stood firmly behind Trump as both were able to make progress on a mutual goal — reshaping the courts in a more conservative image. They also moved to greatly curtail the “blue slip,” a longtime process by which no judicial nominee can advance without the approval of both home state senators.
In total, the Senate has been able to confirm 19 judges in 2017, a number that is greater than President Barack Obama’s first year in office but fewer than President George W. Bush was able to get through in 2001.
Still, the record-setting number of circuit court confirmations is a point of pride for both Trump and Senate Majority Leader Mitch McConnell, who touted the record on the South Lawn of the White House as Republicans were taking a victory lap for the passage of their massive tax overhaul earlier this month.
‘The Senate will need to increase the confirmation pace in 2018’
Meanwhile, Trump has nominated roughly 75 judges for vacancies on the federal bench, with just a handful having to be returned. He will start 2018 with about 160 vacancies to fill, and a thin majority in the Republican-controlled Senate, and a desire to tout legislative accomplishments, opening up the door for even more time to be spent on the judicial nominees.
“Even with these confirmations, however, there are still about 160 vacancies remaining on the federal courts, almost 50% more than when Trump took office,” Carrie Severino, chief counsel for the Judicial Crisis Network, a conservative group that worked to help advance Trump’s nominees, told Business Insider in an email. “The Senate will need to increase the confirmation pace in 2018 simply to keep up with the number of retirements.”
In an end-of-year call touting the administration’s accomplishments, a senior White House official labeled the action on the courts as one of the president’s biggest highlights of the year.
“This will continue to be a place where the president’s mark will be seen,” they said.
Carl Tobias, a University of Richmond professor and expert on judicial nominations, told Business Insider that the year will be remembered for the “record-setting” pace of appellate court confirmations, which the administration, McConnell, and Senate Judiciary Committee Chairman Chuck Grassley should get “substantial credit” for.
He warned, however, that the administration should take note of the nominees who were returned and who did not make it through the confirmation process and act with more “caution” moving forward in vetting nominations.
In 2018, the pace will be “just as breakneck as it has been,” he predicted.
“Because of the threat that they might lose the Senate” in 2018, he said. “So I assume they will want to have hearings every two weeks and move people as quickly as they can.”
Democrats, for the most part, sought to block Trump’s nominees with whatever procedural powers remain after filibusters for lower-court judges were crushed by then-Senate Majority Leader Harry Reid in 2013.
It’s a trend that Tobias thinks doesn’t show signs of stopping soon, even though he added that the administration could benefit by consulting more with Democratic senators before putting forth nominees.
“Unless one party controls the Senate and the White House, this is going to be difficult to get people through,” he said, adding there is “plenty of blame to go around” for how Congress got to that point.
Case in point: Senate Republicans moving to greatly curtail the “blue slip,” a tradition that leading Republicans had called for the preservation of just a few years ago when Obama was in power.
“Once you start taking apart the blue slip, is there anything left?” Tobias said. “Once you start overloading the hearings, are you inclined to overload them even more? I’m just afraid you’re going to get into a dynamic of either tit-for-tat or payback or accelerating already bad processes, which I think would be disastrous.”
“I just think they need a way to move forward and use some of the traditions that were helpful and encouraged bipartisanship and cooperation,” he continued.