In his first 18 months in office, President Trump placed 44 lifetime Article III federal judges on the bench. Conservative pundits praise the record. But how do the 44 confirmations really stack up?
The U.S. currently has 860 congressionally established Article III judicial positions, breaking down as follows: 9 Supreme Court justices, 179 appellate judges, 663 district judges, and 9 international trade judges. Additionally, there are ten temporary district court judgeships and over 600 “senior status” federal judges not included in the 860. Except for temporary posts, Congress last increased the size of the Article III judiciary in 2002.
Comparing Trump to other presidents
From inauguration through July 20, 2018, Trump’s appointments included one Supreme Court justice, 23 appellate judges, and 20 district court judges. Among those, the confirmation of Justice Neil Gorsuch stands as a ballyhooed divisive coup.
A dispassionate assessment of Trump’s confirmations vis-a-vis those of other Presidents is warranted. As a first and simple evaluation, we’ll compare the first 18-month volume of Trump’s confirmations to the confirmations of the four U.S. Presidents who hold the record for the number of judicial appointments during their full terms – George W. Bush, Bill Clinton, Barack Obama and Ronald Reagan. Using that simple gauge, the rankings are:
Ranking President Confirmations
(first 18 months)
1. Clinton — 73
2. Reagan — 67
3. Bush (Geo. W) — 59
4. Trump — 44
5. Obama — 37
While Trump fares well in this elite group, his record is hardly astounding.
PowerScoring the Judicial Confirmations
Admittedly, the static confirmation numbers do not provide a meaningful comparison. Not all federal judgeships are created equally. Everyone should agree that Supreme Court and appellate court positions deserve a greater weighting than the district court posts.
Let’s assume that a Supreme Court and appellate confirmation are “worth,” respectively, 50 and 10 times that of a district judge. This subjective weighting dramatically re-orders the ranking.
Ranking President PowerScore Calculation
1. Trump 300 (50 x 1) + (10 x 23) + (1 x 20)
2. Reagan 242 (50 x 1) + (10 x 14) + (1 x 52)
3. Clinton 230 (50 x 1) + (10 x 12) + (1 x 60)
4. Obama 167 (50 x 1) + (10 x 9) + (1 x 27)
5. Bush (43) 158 (50 x 0) + (10 x 11) + (1 x 48)
Using this weighted analysis, Trump leaps from 4th to 1st place in the “significance” of judicial appointments in the first 18 months in office. Clinton, with an eye-popping number of district court confirmations, falls from 1st to 3rd. Bush (43), not having a Supreme Court confirmation during this period, drops from 3rd to 5th.
Before you argue that the 50x factor for a Supreme Court Justice is too little or too much, take note that Trump’s #1 Power Score ranking remains the same no matter the multiple. If you accept the 50x factor for a Supreme Court Justice, to unseat Trump for the first place ranking, you would need to unrealistically lower the appellate multiple from 10x to 3x (or less).
The PowerScoring could be fine-tuned by considering other relevant factors, such as the average age of new judges, confirmations to the prominent D.C. Circuit, a weighting of the circuits, and an ideology-shifting majority in the Supreme Court or on a circuit.
Trump’s stupendous PowerScore ranking benefited greatly from his and Senate Majority Leader Mitch McConnell’s tactical emphasis on confirmation of appellate judges over district judges, the Republicans’ razor-thin Senate majority, and the 54-45 Gorsuch confirmation. Trump would likely not have achieved this record but for the Senate Democrats’ November 2013 decision, at a time they controlled the majority, to first trigger the nuclear option and allow a simple majority vote to confirm Obama’s federal judicial nominations.
The PowerScoring ranking, while sound, focuses on an early point in the game. Comparing it to the Super Bowl, eighteen months is just half-way into the second quarter.
For Trump, the final tally and legacy will be heavily influenced by the outcome of the Senate confirmation vote on Judge Kavanaugh, the Republicans’ ability to hold the Senate majority through Trump’s presidency, an unlikely second Trump term in office, and whether Trump lands an improbable third appointment to the Supreme Court.
As for Trump’s lasting impact on the federal judiciary, it would be premature to say the jury is still out. The jury hasn’t even been picked.
» BEN WILLIAMS the author, is a Mississippi attorney. Email Ben at MBWJ@aol.com. FORD WILLIAMS the artist, is a junior at the Savannah College of Art & Design (SCAD)..
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