As of January 19, 2019 – the two-year watermark of his term – President Trump had placed 85 lifetime Article III judges on the federal bench. Is that a lot?
The Legal Editor for U.S. Law Week, reporting at Bloomberg Law on January 16, 2019, erroneously claimed Trump’s 85 confirmations set “a record for a president’s first two years in office.” The headline for a January 14, 2019 column by NPR’s Justice Correspondent bellowed “Trump’s Judicial Appointments Were Confirmed At Historic Pace In 2018.” A Senior Politics Reporter at the Huffington Post (1/3/19) lamented that “Republicans have already put record numbers of Trump’s judges onto the federal bench.” Are these reports accurate?
To answer these questions, and update our 18 month analysis, we provide a two-tiered assessment of Trump’s judicial fingerprints as of Day 730 vis-à-vis other U.S. Presidents boasting significant numbers of judicial appointments.
The Federal Bench
The federal Article III judiciary is composed of 9 Supreme Court justices, 179 appellate judges, 663 district judges, 9 international trade judges, 10 temporary district court judges and over 600 “senior status” federal judges. Ignoring the senior status judges, there are 870 positions. On January 19, 2019, Trump’s appointees occupied 9.77% [85/870] of those positions.
Drama ad nauseam
From inauguration through January 19, 2019, Trump’s appointments included two Supreme Court justices, 30 appellate judges, 53 district court judges, and no international trade judges. The ballyhooed divisive confirmation of Justice Neil Gorsuch on Day 88 of the Trump Reign paled in comparison to the drama, showmanship, and parliamentary maneuvers accompanying the Senate proceedings that culminated in Justice Brett Kavanaugh’s Day 625 confirmation.
As 2018 meandered toward Christmas recess, lame duck Republican Senator Flake degraded a 51-49 Republican-majority Senate into a 50-50 split, triggering the first ever confirmation of a federal judge by a 51-50 Vice-President-tie-breaking vote. In a last minute lackluster show of bipartisan spirt, the Senate approved 77 non-Article III nominations on January 3, 2019 (the last day of the 115th U.S. Congress), but allowed all pending 71 Article III judicial nominations to expire.
The first days of the 116th Congress saw no judicial action, and Trump’s Day 730 in office ended on January 19, 2019, with only 85 judicial confirmations.
Comparing the Trump Confirmations to other U.S. Presidents
We first compare the sheer number of Trump’s confirmations in his first 730 days to the confirmations of the four U.S. Presidents who made the most judicial appointments over the course of their presidencies – George W. Bush, Bill Clinton, Barack Obama and Ronald Reagan. Using that simple gauge, the rankings are:
Ranking President Judicial Confirmations (as of Day 730 in office)
- Clinton 128
- Geo. W. Bush 100
- Reagan 88
- Trump 85
- Obama 62
Trump doesn’t even make the top three in this facile comparison. This ranking refutes the cited articles’ portrayal of a historic and record-breaking pace of judicial appointments.
PowerScoring the Judicial Confirmations
Still, a review of the sheer numbers leads to a numerically accurate but dubious conclusion. Using the same weighting in our 18-month analysis, we assume that a Supreme Court and appellate confirmation are “worth,” respectively, 50 and 10 times that of a district and international trade judge confirmation. This subjective weighting spectacularly shuffles the rankings.
Ranking President PowerScore Calculation (confirmations/Day 730)
- Trump 453 (50 x 2) + (10 x 30) + (1 x 53) + (1 x 0)
- Clinton 397 (50 x 2) + (10 x 19) + (1 x 107) + (1 x 0)
- Reagan 308 (50 x 1) + (10 x 19) + (1 x 68) + (1 x 0)
- Obama 304 (50 x 2) + (10 x 16) + (1 x 44) + (1 x 0)
- Bush (W) 253 (50 x 0) + (10 x 17) + (1 x 83) + (1 x 0)
Using this formula, Trump leaps from 4th to 1st place. Clinton drops from 1st to 2nd place due to a heavy component of lower-weighted district judges. Bush (W) falls dramatically due to the lack of even a single Supreme Court appointment during the relevant period.
Readers are free to dispute my subjective factoring (50-10-1). Take note, however, that toying with the Supreme Court multiple doesn’t change the PowerScore ranking. I readily concede that a more robust evaluation might consider other relevant variables, such as the average age of new judges, confirmations to the prominent D.C. Circuit, a ranking of the circuits, and an ideology shift with an appointment.
Trump’s laudable PowerScore ranking benefited greatly from (i) the continued tactical emphasis by Senate Republicans on confirmation of appellate judges over district judges and (ii) two Supreme Court confirmations. Even with Republicans controlling the Senate, his high score would not have been likely but for the Democratic-majority Senate’s November 2013 decision to trigger the nuclear option and allow a simple majority vote to confirm Obama’s stalled federal district and circuit court nominations. The Republicans would not only seize that new rule in 2017 for their own use, but expand it to include Supreme Court nominations.
This Day 730 PowerScore represents an early evaluation. Sports fans recognize there is a lot of time left on the clock. For Trump, the final tally and legacy will be heavily influenced by a host of wildcards, which include, as examples, possible House impeachment proceedings, RBG’s health, likely amendment of Senate cloture rules, and the 2020 Presidential campaign.
In my previous assessment of Trump’s lasting impact on the federal judiciary, I observed that not only was the jury not yet out, it hadn’t even been picked. The jury was subsequently picked in the mid-term elections. With the opening of the 116th U.S. Congress, the jury has now been sworn and seated.
Using the enhanced 53-47 Republican-majority Senate, Trump will spend the next two years of his first term packing the judicial bench.
Ben Williams, the author, is a Mississippi attorney. Email Ben at MBWJ@aol.com. Ford Williams, the artist, is a rising junior at the Savannah College of Art & Design (SCAD).
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