The most critical government document released on Wednesday—the one that’ll have the most wide-ranging impact in the future—was not James Comey’s prepared testimony for the Senate Intelligence Committee about his interactions with Donald Trump. It was a simple press release, issued by the White House, announcing a “fourth wave” of judicial nominations since the Trump inauguration. The eleven nominations included four district court judgeships, three for the U.S. Circuit Court of Appeals, three for the Court of Appeals for Veterans Claims, and one for the Court of Federal Claims. Conservatives were uniformly delighted.
All told, Trump has nominated 22 judges to fill vacancies across the federal bench. Thus far, only two—Supreme Court Justice Neil Gorsuch and Sixth Circuit Court Judge Amul Thapar—have been confirmed. But the prospect of filling vacancies over time explains a lot about why congressional Republicans have stood by Trump, despite the erratic and stormy start to his presidency. As long as Trump keeps funneling a steady supply of conservative jurists to the Senate, in a bid to dramatically reshape the federal courts, Republicans can go to bed happy that they’re fulfilling at least one major element of their political project.
Judicial nominations are the one area where the Trump administration is “running like a fine-tuned machine,” as the presidentin February. In fact, Trump’s team has far outstripped the efforts of his predecessor. By this date eight years ago, President Obama had made just four judicial nominations: Supreme Court Justice Sonia Sotomayor, and three nominations for the Court of Appeals.
It is true that Trump was blessed—thanks mostly to a virtual freeze on judicial confirmations in the last two years of the Obama presidency—with more opportunities than Obama. According to the American Bar Association, at the beginning of June 2009 there were 72 judicial vacancies; today there are 132. But even given that, if you want to do this by percentages, President Trump, at this point in his presidency, has nominated replacements for 16.7 percent of all judicial vacancies; President Obama by this time had nominated replacements for just 5.6 percent.
What accounts for this rare outburst of competency from the Trump White House? Certainly, judicial nominations are a lighter lift than legislation; thanks to changes to the Senate filibuster made by both parties, judges at all levels now need only 50 votes for passage, meaning Republicans can confirm them without Democratic support. Those rules were still in place in 2009, and throughout Obama’s first term. He did have a filibuster-proof majority for brief periods, from July–August 2009 and September 2009–February 2010. But the former president certainly had less margin for error.
Also, like other Democratic presidents since Carter, Obama set a tougher bar for himself: He interpreted the Senate confirmation rules to mean that he had to achieve widespread support for all of his nominees. Responding to criticism about the slow pace of nominations (criticism which was persistent throughout the first term), Obama spokesman Ben LaBolt insisted in 2009 that “this process has been bipartisan and we have made every effort to make confirmation wars a thing of the past.”
That gets to the real difference between Democrats and Republicans on the judiciary. Republicans see appointing ridigly conservative judges as a central part of their policy strategy. Obama, like Bill Clinton before him, used judicial nominations as an opportunity for bipartisan comity.
Here’s another example of Republican aggression on judges, and Democratic timidity: the Senate’s so-called “blue slip” rule. In a tradition dating back at least a century, senators from the same state as a judicial nominee get the courtesy of approving that nominee, by turning in a blue slip of paper to the Judiciary Committee before confirmation hearings. If a senator objects to a nominee, he can hold back the blue slip, stalling the process.
Under Obama, Senate Judiciary Committee Chairman Patrick Leahy honored the blue-slip tradition, and Republicans predictably invoked the privilege, making it impossible to nominate judges to a state with a Republican senator. Under Trump, the GOP has already talked about eliminating the blue slip rule for the circuit courts, or even doing away with it altogether. (Trump’s recent nominees, including two from states with Democratic senators, will be the true test; will Pennsylvania’s Bob Casey or Colorado’s Michael Bennet withhold support from these judges, and will Republicans honor the request?)
If Republicans change the rule, it would be all too typical. When Republicans hold the Senate and want a president to get judges through, they relax blue-slip rules. When the president is a Democrat, they tighten them. Democrats have adhered to blue-slip traditions regardless of who sits in the Oval Office. It speaks to the intensity of the GOP’s pursuit of judicial confirmations. Republicans simply want their judges more, and will not let Senate customs get in the way.
But there’s another important reason why Trump has been adept at judicial nominations while bumbling elsewhere: There’s a large infrastructure on the right dedicated solely to confirming judges. The Federalist Society is a college-based networking organization, with tens of thousands of members, which identifies bright conservative law students and assists them in their career path, up to and including securing lifetime appointments to the courts. The Federalist Society doesn’t just elevate conservative judges, but polices them, admonishing judges for rulings that depart from the conservative party line.
As Jeffrey Toobin explained in The New Yorker in April, Federalist Society executive vice-president Leonard Leo has effectively chosen the last three Republican Supreme Court nominees. And the group was essential in constructing lists of acceptable judges for Trump to choose from, along with the stalwart think tank, the Heritage Foundation. Other groups, like the Judicial Crisis Network, focus heavily on judges as well.
This architecture is much more brittle on the left. While the American Constitutional Society was created specifically as a counterweight to the Federalist Society, the network hasn’t gained nearly the same influence. Additional funding of liberal judicial groups might help, but it’s really a question of emphasis: Republicans place judges at the center of their political framework, while for Democrats, it’s just another interest group on the periphery.
This imbalance means the judicial branch inexorably drifts right, toward a constrained view of the Constitution and a limited federal government. It creates a judiciary that favors big business and puts big legislative advances at risk. And its impact stretches over decades, well beyond Trump’s presidency. After eight years in the wilderness, Republicans in Congress and their backers in think tanks and super PACs don’t want to stop that forward momentum.
In the judicial arena, at least, Trump is fulfilling the duty laid out by Grover Norquist when he said that conservatives just need a president “with enough working digits to handle a pen.” His unpopularity and the overarching Russia investigation aside, he’s signing off on the nominations that conservatives want. If Republicans in Congress manage to get their act together on legislation, he’ll sign those bills into law as well. The GOP won’t abandon him because he’s giving them what they want.
When we talk about “Trump” or “Obama” nominating judges, of course, it’s a slight misnomer. Judicial nominations are a collaborative exercise of Congress, the executive branch, and outside groups with expertise. Republicans know how to work that system and get nominees into black robes. And they’re not going to let a little thing like corruption or obstruction of justice stand in their way.