Judicial Confirmations - Questions for 2020, Answers for 2019

Today, Ed Whelan posted the four big questions in judicial confirmations for 2020 and answers to the four big questions he posed at the beginning of 2019. The first big question is whether a new Supreme Court vacancy will arise.

Although one did not in 2019, he notes that a nominee for a vacancy that arise this year would likely be confirmed "notwithstanding the ruckus the Left will raise." Looking ahead to 2020, he also asks:

2. Will many new vacancies open up on the federal appellate courts?

As of today, there are only two vacancies (current or declared future) on the federal appellate courts. The nominee to one of those vacancies (Andrew Brasher to an Eleventh Circuit seat in Alabama) will probably be confirmed this month.

As identified in this post, there are 29 sitting appellate appointees of Republican presidents who are, or who will soon be, eligible to take senior status or to retire, and there are an additional 38 such appointees of Democratic presidents. We’ll see how many, if any, decisions to take senior status are announced over the next week or two. Don’t count on many additional vacancies opening up over the course of the year. . . .

4. Will Donald Trump win re-election?

This is the most momentous question for judicial confirmations (as well as for much else). If Trump is re-elected, he might well end up appointing four or five Supreme Court justices over his eight years, and he can continue his transformation of the federal appellate courts. If he loses re-election, the courts could be very much up for grabs.

Looking back to 2019, he had asked:

2. “How smoothly will key new personnel in the White House and Senate step into their roles?”

Kudos to White House counsel Pat Cipollone and his team—especially deputy White House counsel Kate Todd—for a very smooth transition. Ditto to new Senate Judiciary Committee chairman Lindsey Graham and his staff.

The numbers tell part of the story of success: 20 federal appellate judges and 80 federal district judges confirmed. The remarkably high caliber of so many of the confirmed judges tells the rest of the story.

3. “Will many new vacancies open up on the federal appellate courts?”

Only seven new vacancies (current or future) on the federal appellate courts arose or were announced during 2019. Six of those were promptly filled in 2019, and the nomination to the seventh (Andrew Brasher to the Eleventh Circuit to succeed Edward Carnes) will likely be confirmed this month.

4. “Will the Senate ensure timely floor votes on federal district nominees?”

In response to the last, he notes that--due to Majority Leader Mitch McConnell's leadership--the rule change passed this year limiting post-cloture debate on district court nominees to two hours prevented the Democrats from delaying district court confirmation votes on the floor simply for the purpose of delay. The Senate confirmed 80 district court judges from April to December 2019, as opposed to only 53 from when President Trump took office to April 2019.

Thanks to President Trump, White House Counsel Pat Cipollone, Leader McConnell, Senate Judiciary Chairman Lindsey Graham, and Republican senators for continuing to nominate, vet, and confirm well-qualified federal court judges who will uphold the rule of law and interpret the law as written.