Justice Update: Pres. Trump Continues to Reshape Judiciary; Barr Confirmation Vote Likely Tomorrow

This past week in the Senate could be best summarized as "justice week." Last Wednesday and again today, the Senate Judiciary Committee held hearings for judicial nominees announced late last year, including the contentious hearing for Neomi Rao to fill Justice Kavanaugh's seat on the DC Circuit. Last Thursday, the Committee sent more than 40 judicial nominees to the Senate floor for a final confirmation vote, many of whom were holdovers from the last session of Congress thanks largely to Democrat obstruction tactics "to make the confirmation process as cumbersome as possible." And finally tomorrow, the full Senate is expected to have the final confirmation vote for Bill Barr as the next US Attorney General, after invoking cloture yesterday.

On Monday, the Walter Olson of the Cato Institute wrote about President Trump and his administration's efforts to remake the federal courts in the New York Post. He explains that every modern president has worked to leave a lasting impression on the courts through his choice of nominees, but President Trump has been doing great work at chipping away at a liberal judiciary.

As Olson wrote in the New York Post on Monday:

“President Donald Trump and Senate Republicans are remaking the federal courts in their own image,” declared NPR’s Nina Totenberg recently. Others agree: The administration’s lower-court selections will change America “for generations.”

Exciting, no? Unless you take the view that it happens with pretty much every White House. Barack Obama, too, remade the lower courts with effects that will last for generations. Federal judges have life tenure and decide big issues. Same with George W. Bush and Bill Clinton. All came in with a Senate majority and definite views on judges they wanted to ­appoint....


How does the Trump Administration compare? Olson outlines:

Consider that when Obama took office, 10 of the 13 federal circuits had majority Republican-appointed judges. By January 2017, only four circuits had GOP-appointed majorities, while nine were Democratic-appointed majorities. Quite the shift.

When Trump came in, thanks in part to Senate Majority Leader Mitch McConnell, there were a lot of vacancies. His 167 nominations as of Jan. 29, representing about 20 percent of the 851 seats, exceed those of his three predecessors, who had between 111 and 140 by this point. When it comes to actual confirmations, Trump is around the middle of the pack with 85, ahead of Obama (62) but behind Bush (100) and Clinton (128)....


Efforts so far, according to Olson:

Of the 13 circuits, only one has undergone any real partisan lurch since January 2017: the 11th (Georgia, Florida, Alabama), which went from eight Democratic appointees and three Republicans to a 6-6 tie. (I am indebted to my Cato Institute colleague Ilya Shapiro, who keeps a running tally of these.) But keep in mind, in January 2009, when Obama first took office, the 11th was 7-5 split in favor of Republican appointees. Trump didn’t “reshape” the 11th, he “unshaped” what Obama did.

The influential Second Circuit, which includes New York, has two vacancies and might soon approach near-ideological balance, with Democratic appointments holding just a 7-6 majority. But the Second is known as an unusually collegial circuit that avoids partisan divisions where it can. The Third (New Jersey, Pennsylvania) may be evolving from a small Democratic to a small Republican edge....

In short, President Trump is doing a tremendous job at appointing well qualified, conservative jurists to the federal bench, particularly at the circuit court level. The RNLA will continue to follow and regularly highlight these nominees and their confirmation progress.