Another Escalation in the Judicial War

What will happen when a Senate majority votes in unison against every presidential nominee?
December 17, 2017 • Commentary
This article appeared on The Wall Street Journal on December 17, 2017.

With last week’s confirmations of Don Willett and James Ho to the Fifth U.S. Circuit Court of Appeals, President Trump set a record for most appellate judges confirmed in a president’s first year. Twelve judges have joined the federal circuit courts in 2017, beating by one the record previously held by Presidents Kennedy and Nixon. The quality of these new appointees is exceptional, with seven having clerked at the U.S. Supreme Court and six appearing on Mr. Trump’s impressive list of potential high‐​court candidates.

Add Justice Neil Gorsuch’s confirmation, and that’s quite a year. Even after Candidate Trump released his list of prospective justices, conservative legal elites were not at all confident that President Trump would—or would be able to—execute a concerted plan to put a stamp on the judicial branch. Credit goes to White House counsel Don McGahn, Senate Majority Leader Mitch McConnell and Judiciary Committee Chairman Chuck Grassley —and to the president, who deferred to their legal expertise and political strategy.

At the same time, with only six confirmed district‐​court judges, Mr. Trump’s total number of judicial appointments stands at 19, not even close to a record. While President Obama didn’t prioritize judges in his first term, George W. Bush filled 28 slots on the federal bench his rookie year and Bill Clinton 27 (plus Justice Ruth Bader Ginsburg ). Ronald Reagan had 40 lower‐​court judges confirmed his first year, along with Justice Sandra Day O’Connor.

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.

About the Author
Ilya Shapiro

Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review.