Another Escalation in the Judicial War What will happen when a Senate majority votes in unison against every presidential nominee? By Ilya Shapiro
https://www.wsj.com/articles/another-escalation-in-the-judicial-war-1513538587
With last week’s confirmations of Don Willett and James Ho to the Fifth U.S. Circuit Court of Appeals, President Trump set a record for most appellate judges confirmed in a president’s first year. Twelve judges have joined the federal circuit courts in 2017, beating by one the record previously held by Presidents Kennedy and Nixon. The quality of these new appointees is exceptional, with seven having clerked at the U.S. Supreme Court and six appearing on Mr. Trump’s impressive list of potential high-court candidates.
Add Justice Neil Gorsuch’s confirmation, and that’s quite a year. Even after Candidate Trump released his list of prospective justices, conservative legal elites were not at all confident that President Trump would—or would be able to—execute a concerted plan to put a stamp on the judicial branch. Credit goes to White House counsel Don McGahn, Senate Majority Leader Mitch McConnell and Judiciary Committee Chairman Chuck Grassley —and to the president, who deferred to their legal expertise and political strategy.
At the same time, with only six confirmed district-court judges, Mr. Trump’s total number of judicial appointments stands at 19, not even close to a record. While President Obama didn’t prioritize judges in his first term, George W. Bush filled 28 slots on the federal bench his rookie year and Bill Clinton 27 (plus Justice Ruth Bader Ginsburg ). Ronald Reagan had 40 lower-court judges confirmed his first year, along with Justice Sandra Day O’Connor.
Many executive-branch positions remain vacant because Mr. Trump has not put forth nominees. Not so for judges. With 58 judicial nominations, Mr. Trump is second to George W. Bush at this point. Instead, the problem is that Senate Democrats have demanded “cloture” votes on all but one of the nominees. That is, Minority Leader Chuck Schumer has forced votes on whether to proceed to a final vote, each of which eats up 30 hours of Senate floor time. That’s been the case even for district-court nominees, the closest of whose confirmation votes was 79-16 (the nays notably including potential 2020 presidential contenders Kirsten Gillibrand, Kamala Harris, Bernie Sanders and Elizabeth Warren ).
Not surprisingly, the votes on most of the circuit judges were much closer. Ralph Erickson sailed through to the Eighth Circuit 95-1, with only Ms. Warren in the negative. Kevin Newsom of the 11th Circuit somehow drew 16 Democratic ayes, for a 66-31 tally. But the others have faced a blue wall. With the occasional exception of Democrats representing states Mr. Trump won overwhelmingly, the votes were essentially party-line. While the average Bush and Obama circuit nominee received about 90% of senators’ vote—many confirmed unanimously or by voice vote—Mr. Trump’s have averaged less than 60%, and have all been subjected to both cloture and roll-call votes. CONTINUE AT SITE
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