Forensic News

The Trumpification of the Federal Judiciary: Part One

Author’s note: This piece is the result of many months of research, data collection, and analysis. Due to the intensive time requirement, the numbers contained within are accurate as of September 1, 2020. Since then, a vacancy has opened on the Supreme Court with the death of Ruth Bader Ginsburg and Trump has successfully appointed 15 more judges to the district courts. The appeals court has not had a vacancy nor an appointment that would affect the data presented herein.

The basics

Takeaway: Approximately a quarter of active judges are Trump appointees.

The Appointments Clause of Article II of the U.S. Constitution gives the president the authority and responsibility to nominate and, with the advice and consent (confirmation) of the U.S. Senate, appoint public officials. Some of these public officials are federal judges. 

In addition to the Supreme Court, Congress has established 13 courts of appeals (also called “circuit courts”) with appellate jurisdiction over different regions of the United States, and 94 United States district courts. All judges on these courts are federal judges nominated by the president and confirmed by the Senate. 

Image 1. Circuit Court and District Court map (Source: Wikipedia)

For the purposes of this article, the analysis will exclude judges on specialized courts such as the Court of International Trade or Court of Federal Claims, and judges on territorial courts in Puerto Rico, Guam, the Virgin Islands, and the Mariana Islands.

The courts included in our analysis contain 9 Supreme Court seats, 167 seats on the courts of appeals, and 671 seats on the district courts – for a total of 847 federal judgeships. All are lifetime positions.

As of September 1, President Trump has successfully appointed 2 Supreme Court justices, 53 appellate judges, and 146 district court judges – a total of 201 judges.

His impact on the appeals circuit is particularly marked, where 32% of active judgeships are filled by Trump nominees. This high percentage resulted in three circuit courts flipping to majority Republican appointees: the Second Circuit, Third Circuit, and Eleventh Circuit. The Fifth, Sixth, Seventh, and Eighth Circuits were majority Republican appointees when Trump took office.

Table 1. The partisan of each Circuit in the Court of Appeals


Judicial emergencies

Takeaway: Trump has prioritized district court vacancies in red states, even in instances where a court is severely understaffed.

There are no vacancies on the Supreme Court (author’s note: at the time of publishing, one vacancy has opened on the Supreme Court) and the circuit courts. However, there are 70 vacancies in district courts, 41 of which have nominees pending. One-third of the district court vacancies are in California and Washington state. 15 of the vacant seats opened before 2017, meaning 55 of the vacancies are recent.

Of the 70 district court vacancies, 42 are deemed judicial emergencies, defined as a vacancy that leaves excessive numbers of filings per judgeship, putting current judicial work in crisis. 

Image 2. Judicial emergencies by state (as of Sept. 1)

When Trump took office, there were 27 district court judicial emergencies: 20 in red states and 7 in blue states. As depicted in Image 2, as of Sept. 1, 2020, Trump has decreased the number of judicial emergencies in red states to just 4, while the number of emergencies in blue states has surged to 35. Three of the judicial emergencies are in “purple” states, those with one Democratic senator and one Republican senator.

“When dockets get overwhelmed by [judge] shortages, there’s going to be that delay in the handling of the cases, which creates pressure within the court because the judges want to do the right thing and dispense justice in a timely fashion,” said Jose Linares, chief judge of the U.S. District Court for the District of New Jersey until his retirement in May.


A history of vacancies

Takeaway: Nearly two-thirds of the vacancies that existed when Trump took office were open as a result of Republican obstruction in the Senate.

Perhaps most infamously, Republicans in the Senate refused to even hold a hearing on President Obama’s Supreme Court nominee Merrick Garland, following the death of Antonin Scalia in 2016. Less well known is the fact that Senate Republicans during the 114th Congress blocked dozens of judicial nominations made by Obama.

Trump told [Bob] Woodward in May that the judges he’s appointed to vacancies that existed when Obama was president are “like golden nuggets.”

At the time of President Trump’s inauguration on Jan. 20, 2017, there were 90 vacancies in the three main federal court systems – the Supreme Court (1), the appeals circuit (17), and the district court (72).

Image 3. Why judicial seats filled by Trump were open

Of the 90 vacancies (the colored slices in Image 3) when Trump took office, 44 (48.8%) had at least one previous nominee under Obama that was intentionally blocked by Senate Republicans. In the case of 15 (16.7%) of the 90 vacancies, the Obama administration did not nominate a judicial candidate due to failed negotiations with Senate Republicans, including home-state senators who had blue slip veto power (see definition box below).  In other words, 65% of the seats open on the day of Trump’s inauguration were held open by Senate Republicans. 

Finally, 31 (34.4%) of the seats did not have a nominee due to either (a) the vacancy occurring late in 2016, or (b) the Obama administration concluding that it was not worth the time and effort to try to negotiate with Republican senators.

Definition: Blue slip

Blue slip: When a judicial nominee is being considered by the Senate Judiciary Committee, a blue form (“blue slip”) is given to both senators from the nominee’s home-state. The senators may return the slip with feedback on the nominee or withhold it altogether, signaling strong disapproval of the nominee. [See Yale Law and Policy Review for more details]

Traditionally, at least one home-state senator had to approve of the judicial nominee before a confirmation hearing was held. Some committee chairman required two positive blue slips for a nominee to advance.

Under Trump, committee chairmen Sens. Chuck Grassley (R-IA) and Lindsey Graham (R-SC) have ignored the blue slip tradition for appeals court nominees. In Oct. 2017, Senate Majority Leader Mitch McConnell (R-KY) announced that he believed blue slips should not prevent committee action. The decision allowed 8th Circuit Court nominee David Stras to receive a hearing – and ultimately be confirmed – over the objection of Sen. Al Franken (D-MN). Since then, 18 more appellate court judges were confirmed despite home-state senator disapproval.

Example: Oldest federal judicial vacancy

The oldest federal judicial vacancy, a seat on the District Court for the Eastern District of North Carolina, was filled by Trump nominee Richard E. Myers II on Dec. 10, 2019. The seat was vacant for 13 years, since Dec. 31, 2005. George W. Bush nominated controversial attorney Thomas Farr for the position, but his nomination stalled due to his involvement in the suppression of African-American voters.

Obama did not advance a candidate during his first term, finally nominating federal prosecutor Jennifer May-Parker in 2013. North Carolina Senator Richard Burr (R) blocked her nomination by refusing to return a blue slip. In 2016, Obama then nominated Patricia Timmons-Goodson, a former justice on the North Carolina Supreme Court, to fill the vacancy. Sen. Burr blocked her nomination, as well.

In 2017, Trump renominated Farr for the vacancy. It’s worth noting that Burr approved of Farr’s nomination, a white man with a history of suppressing the political participation by African Americans, while he blocked two highly qualified African-American women from the position under Obama. Even in a Republican-controlled Senate, Farr faced opposition (chiefly from Sen. Tim Scott of South Carolina) and the White House was forced to withdraw his nomination in favor of Myers.


Blocked seats: Responsibility

Takeaway: Mitch McConnell is personally responsible for holding open almost half of the seats that were blocked under Obama and filled by Trump.

Working with the 44 vacant seats that had nominees blocked and the 15 that were blocked through failed negotiations, we can look at who was responsible for the hold-up (Image 4). Nearly half of these vacancies, 27 (or 45.8%), were prevented from being filled by Senate Majority Leader Mitch McConnell.

Image 4. Who held a seat open during Obama’s presidency.

Prior to Trump’s presidency, the Senate still respected the blue slip tradition, allowing senators from the state of residence of a federal judicial nominee to approve or disapprove of their nomination. In November of 2017, Senate Judiciary Committee Chairman Chuck Grassley broke the tradition, permitting judicial nominees to receive a hearing and progress to confirmation despite disapproval from Democratic home-state senators.

During Obama’s presidency, Republican senators relied on the blue slip tradition to block 15 (25.4%) judicial nominations for seats Trump eventually filled. Similarly, the Senate Judiciary Committee blocked eight (13.5%) of Obama’s nominees for seats later filled by Trump.

Finally, nine (15.2%) vacant seats filled by Trump were not filled by Obama due to the united front of Republicans. No specific senator was named as responsible for the vacancies. In all but three of these instances, the vacancies were caused by long, drawn-out negotiations with Republican senators that did not result in a consensus nominee.

Comparison

The 114th Congress, controlled by Republicans, voted to confirm only 22 of Obama’s judicial nominees – the lowest number since the 82nd Congress in 1951-52, which confirmed 18 judges, according to the Congressional Research Service. However, the CRS data doesn’t go back past 1945. Nine of these Obama judges were confirmed in 2016, only one of which was an appellate judge. 

During the past year and half of the 116th Congress, the Senate has confirmed 117 of Trump’s federal judges. 17 of these Trump judges were confirmed in 2020, three of which were appellate judges. In other words, in the first six months of 2020 the Republican-controlled Senate confirmed almost as many judges as it did in 2 years under Obama, from 2014-2016.

It was this two-year slow down that allowed Trump to shape the judiciary with young, often hyper-conservative judges. McConnell is well aware of the key role he played:

“I was shocked that former President Obama left so many vacancies and didn’t try to fill those positions,” Fox News host Sean Hannity said to McConnell in 2019.

“I’ll tell you why,” McConnell said. “I was in charge of what we did the last two years of the Obama administration.” Then, he laughed.


Blocked seats: Timeline

Takeaway: Nearly 9 out of 10 blocked seats were open a year or more prior to the 2016 election. 

Again working from the 44 vacant seats that had nominees blocked and the 15 that were blocked through failed negotiations, we can also look at how long the seats were kept vacant (Image 5). 

As we learned above, the oldest vacancy in the federal judiciary was open since 2005. Trump also filled a seat that had been blocked and open since 2010 (on the 7th Circuit of Appeals), one from 2011 (Southern District of Texas), and one from 2012 (5th Circuit).

Comparison

The fact that two of the oldest judicial vacancies were appellate judges demonstrates how important the circuit court is – and how contentious negotiations can become. The appeals court acts as the last stop for nearly all cases except for the few that reach the U.S. Supreme Court. Each party would like to either keep or gain partisan “control” over as many circuits as possible. This has never been more of a priority as it is under Trump and McConnell.

In Trump’s first term, he has appointed 53 appellate judges, with no vacancies remaining. During both of Obama’s terms – across eight years –  he only got 55 appeals court judges nominated and confirmed. 30 of these occurred by Sept. 1 of his first term (i.e. by the same time Trump reached 53 appellate judges). George W. Bush and Bill Clinton each appointed over 60 Circuit judges in their eight years, with Bush having 37 by Sept. 1 of his first term and Clinton having 30.

Part of the reason for the disparity in Trump’s numbers versus those of his predecessors is the honoring of the blue slip tradition that existed prior to 2017. The other part of the reason for Trump’s high four-year number is that McConnell has placed confirming judges – often young and conservative – as his “top priority” in the Senate.

Trump filled 15 seats that were held open since 2013, 10 that were blocked since 2014, 23 that were blocked since 2015, and seven that were blocked since 2016. Furthermore, when you add in the seats that opened in 2016 and were not filled – due to a combination of the high likelihood of failure discouraging nominations and simply a vacancy occurring later in the year – Trump has filled 37 seats that opened up during Obama’s last year in office; that’s 41% of the vacancies that existed at Trump’s inauguration.

Image 5. The year that each blocked seat, eventually filled by a Trump-appointee, became vacant.

 



TRUMP’S NOMINEES

The 201 judges Trump has nominated and the Senate has confirmed can be analyzed in aggregate by their ABA ratings and – as we’ll see in Part Two of this analysis – by their partisan activitites.

ABA Ratings

Takeaway: While the vast majority of Trump’s judges have been rated qualified or well-qualified for their position, Trump has also nominated more unqualified judges than any president in recent history.

One of the main tools for determining whether a judge is qualified to hold a position on the federal bench is the American Bar Association (ABA) rating system. The ABA’s Standing Committee on the Federal Judiciary bases its ratings on three criteria: integrity, professional competence, and judicial temperament.

When the Committee evaluates “integrity,” it considers the nominee’s character and general reputation in the legal community, as well as the nominee’s industry and diligence.

“Professional competence” encompasses such qualities as intellectual capacity, judgment, writing and analytical abilities, knowledge of the law, and breadth of professional experience.

In evaluating “judicial temperament,” the Committee considers the nominee’s compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias and commitment to equal justice under the law.

The evaluation does not take political affiliation or ideology into account. The Committee has only three ratings: well qualified, qualified, and not qualified.

Of the 201 federal judges confirmed by Trump, two were unanimously unqualified and five were rated not qualified by a majority of the committee (4 by a substantial majority). 12 were rated not qualified by a minority of the committee, but qualified by the majority. Finally, 43 were rated qualified and 139 were rated well qualified by at least a minority of the committee. In other words, 182 judges nominated by Trump and confirmed by the Senate were rated at minimum qualified by the committee (Image 6).

Image 6. The ABA ratings of Trump’s judicial appointments (total 201)

Unlike the Obama administration, the Trump administration has not granted the ABA access to candidate information prior to nomination. In fact, Trump and George W. Bush are the only presidents since Eisenhower that have not waited for ABA ratings on judicial candidates before choosing a nominee. As a result, both Trump and W. Bush are the only presidents in recent history to nominate candidates unanimously rated not qualified for the judgeship (Image 7).

Image 7. Comparison of the number of judges who received a Not Qualified (NQ) rating under recent presidents

Comparison

George W. Bush nominated two judges unanimously deemed by the ABA Committee as not qualified, but both nominations were withdrawn following the evaluation. Clinton and Obama did not advance unanimously unqualified candidates. In contrast, Trump has nominated four candidates rated wholly not qualified. Two of these were confirmed and seated: L. Steven Grasz, to the Eighth Circuit Court of Appeals, and Sarah Pitlyk, to the Eastern District of Missouri. No other president in publicly available ABA records has had a unanimously-rated-unqualified judge seated on the federal bench.

The rating above unanimously unqualified, in which a substantial majority determines the candidate to be not qualified, is slightly more common in judicial nominations and confirmations. W. Bush submitted three judges that received such a rating, with one withdrawing and the other two confirmed by the Senate. Similarly, Clinton made three such nominations, two of which were confirmed. 

All of Trump’s four nominees assessed to be not qualified by a substantial majority of the ABA Committee have been confirmed to the bench: Holly Lou Teeter (District of Kansas), Jonathan Kobes (Eighth Circuit Court of Appeals), Justin Walker (Western District of Kentucky, now on the DC Circuit Court of Appeals), and Lawrence VanDyke (Ninth Circuit Court of Appeals). A fifth nominee is currently being considered by the Senate Judiciary Committee: Kathryn Mizelle was rated not qualified by a substantial majority of the ABA Committee.

Unanimously not qualified

Taking a closer look at Trump’s four nominees unanimously rated unqualified, three were flagged for inadequate experience to serve on the federal bench. Two were assessed to be too partisan, open to bias, and/or lacking judicial temperament. 

Image 8. Trump judges rated unanimously unqualified yet still confirmed.

In a letter explaining its rating for Sarah Pitlyk, the ABA wrote that her “experience to date has a very substantial gap, namely the absence of any trial or even real litigation experience.” She had never tried a case, taken a deposition, or argued a motion at the time of her nomination. The Senate confirmed Pitlyk to the Eastern District of Missouri, with Sen. Susan Collins (ME) the only Republican to vote against the motion.

L. Steven Grasz received a not qualified rating due to evidence of bias and poor temperament, including interviews with colleagues who described him as “gratuitously rude.” The ABA also identified concerns that Grasz may not be committed to judicial precedent. In a 1999 article, Grasz argued that the lower courts should be able to overrule Supreme Court decisions on abortion rights because “abortion jurisprudence is, to a significant extent, a word game.” Despite such a scathing evaluation, the Senate voted along party lines to make Grasz an appellate judge, one step below the Supreme Court.

Trump’s two failed nominees unanimously assessed unqualified were Brett Talley of Alaska and John O’Connor of Oklahoma, both district court candidates. The ABA said Talley lacked the requisite trial experience, having only practiced law for three years, and made highly partisan statements. Furthermore, Talley failed to disclose his marriage to White House aide (and later Mueller witness) Ann Donaldson. O’Connor was also found to lack “sufficient litigation experience,” and the ABA Committee identified “several instances of ethical concerns,” including complaints of suspicious billing practices.

Majority not qualified

Of Trump’s five nominees rated not qualified by a substantial majority or majority of the ABA Committee, three are particularly notable.

Image 9. A selection of Trump judges rated unqualified by a majority of the ABA Committee.

The ABA found that Jonathan Kobes “has neither the requisite experience nor evidence of his ability to fulfill the scholarly writing required of a United States Circuit Court Judge.” Unlike many other appellate court judges, Kobes had not served in a lower court prior to his nomination; he was an aide to Senator Mike Rounds (R-SD). In December 2018, Kobes was the first federal judicial nominee ever confirmed by a tie-breaking vote, cast by Vice President Mike Pence.

Lawrence VanDyke was the subject of one of the most scathing ABA Committee letters, detailing that colleagues found him to be “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice.” The ABA’s report also found that he “would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.” VanDyke strenuously denied the allegation, breaking down in tears before the Senate, even as Democrats presented evidence of his opposition to same-sex marriage. 

Finally, Justin Walker was judged unqualified to serve on the district court due to his complete lack of trial experience. Seven months later, Walker was elevated to a seat on the Court of Appeals for the District of Columbia Circuit, despite the fact he hadn’t presided over a single bench or jury trial since his confirmation to the district court. The ABA Committee’s evaluation jumped from a substantial majority viewing Walker as not qualified to a majority finding him well qualified. The sudden improvement was explained by a “changed focus” for appellate-level nominees: 

Appellate nominees should have a high degree of legal scholarship, academic talent, analytical and writing abilities, and overall excellence, according to a standing committee backgrounder. Somewhat less emphasis is placed on trial experience, a factor in Walker’s lower rating last year.


Part 2…

Part Two in Forensic News’ look at Trump’s impact on the federal judiciary will be published next week. We’ll look more closely at who Trump’s judges are, what they believe, and the impact their rulings have had.

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