Many executive‐branch positions remain vacant because Mr. Trump has not put forth nominees. Not so for judges. With 58 judicial nominations, Mr. Trump is second to George W. Bush at this point. Instead, the problem is that Senate Democrats have demanded “cloture” votes on all but one of the nominees. That is, Minority Leader Chuck Schumer has forced votes on whether to proceed to a final vote, each of which eats up 30 hours of Senate floor time. That’s been the case even for district‐court nominees, the closest of whose confirmation votes was 79–16 (the nays notably including potential 2020 presidential contenders Kirsten Gillibrand, Kamala Harris, Bernie Sanders and Elizabeth Warren ).
Not surprisingly, the votes on most of the circuit judges were much closer. Ralph Erickson sailed through to the Eighth Circuit 95–1, with only Ms. Warren in the negative. Kevin Newsom of the 11th Circuit somehow drew 16 Democratic ayes, for a 66–31 tally. But the others have faced a blue wall. With the occasional exception of Democrats representing states Mr. Trump won overwhelmingly, the votes were essentially party‐line. While the average Bush and Obama circuit nominee received about 90% of senators’ vote—many confirmed unanimously or by voice vote—Mr. Trump’s have averaged less than 60%, and have all been subjected to both cloture and roll‐call votes.
A nominee with the support of fewer than three‐fifths of senators can get confirmed today only because then‐Senate Majority Leader Harry Reid did away with the filibuster for lower‐court nominees in 2013. So Mr. Reid gets a share of credit for Mr. Trump’s success too.
This year Senate Republicans abolished the filibuster for Supreme Court nominees, the culmination of a tit‐for‐tat escalation. The Democrats’ attempt to filibuster Justice Gorsuch was retaliation for the Republicans’ blockade of Judge Merrick Garland’s nomination in 2016, which in turn followed Mr. Reid’s nuclear option.
That came a decade after Mr. Reid filibustered Bush nominees—using that tactic for the first time on a partisan basis—most notably Miguel Estrada, whom Democrats didn’t want to become the first Hispanic justice. Before that was the partisan fallout from Bush v. Gore, Justice Clarence Thomas’s “high‐tech lynching,” and the smearing of Judge Robert Bork, led by Sen. Ted Kennedy. Attempts at obstruction and delay will continue, with pointless cloture votes and “blue slip” battles, as Mr. Grassley erodes home‐state senators’ abilities to stall nominees.
The one escalation that has yet to occur is for a Senate majority to block a president’s nominees wholesale. One of the consequences of Doug Jones’s election in Alabama is that it becomes more likely that Justice Anthony Kennedy will retire in 2018—assuming he wants a Republican to appoint his successor, or doesn’t want to leave his seat vacant indefinitely.
It seems inevitable that Americans will follow the politicians’ lead and think of judges in increasingly partisan terms. That’s not healthy for an independent judiciary, but it’s to be expected given that we now have starkly contrasting methods of constitutional and statutory interpretation that largely track partisan polarization by ideology. Add the “resistance” to the Trump presidency—which regards as illegitimate everything the president does, including his appointment of Justice Gorsuch—and there’s no wonder judicial nominations are so fraught.
I see no way out other than the gradual unwinding of federal power or the establishment of a consensus around judicial methods that stick to the original public meaning of written legal texts. In other words, be prepared for the war over judges to continue.