Undoing Trump’s Judicial Legacy Is Going to Take (At Least) a Little Longer
Biden has made progress, but Mitch McConnell’s obstructionism gave Trump an advantage that will require more than one presidential term to erase.
With two months to go until the November election and five months remaining in Joe Biden’s presidency, now is the time for commentators to eyeball the calendar and game out how many more life-tenured judges Biden might see confirmed before he leaves office. The rough answer, per this analysis from Russell Wheeler at Brookings, is “maybe a couple,” depending on how ambitious Senate Majority Leader Chuck Schumer gets after the fall recess; how many Senate Democrats are in town at any given moment; and how insufferable Joe Manchin feels like being in between job interviews with law firms on K Street.
Biden may well end up beating President Donald Trump’s total number of judges. But as Wheeler outlines, Biden has basically no chance to meet or exceed Trump’s 54 appointments to the federal courts of appeals. As of this writing, the Senate has confirmed 43 of Biden’s appeals court nominees, which means that even if he were to fill all seven existing and announced vacancies between now and January 20, his best-case scenario is hitting 50. The likeliest outcome, given expected election-year Senate absences and Manchin’s budding career as a steak-inhaling fossil fuels lobbyist, is some number less than that.
Comparing Biden’s close-to-final record to his predecessor’s highlights how remarkable the Trump administration’s efforts to overhaul the judiciary really were. In four years, Trump managed to appoint one fewer appeals court judge than President Barack Obama appointed in eight (55). He came within spitting distance of the eight-year totals of Presidents Bill Clinton (66) and George W. Bush (62). The most recent one-term president before Trump, George H.W. Bush, only got to 42, which Trump surpassed with 18 months remaining in office.
As usual, Trump owes much of his success to someone else: in this case, Mitch McConnell. After Republicans took the Senate in the 2014 midterms, McConnell basically routed judicial nominations directly into the garbage, confirming just two of Obama’s appeals court nominees over the final two years of his presidency. This campaign of obstruction left Trump and his Federalist Society hangers-on with a bumper crop of 17 appeals court vacancies when he took office in 2017. McConnell then made that task considerably easier, disposing of the blue slip rule for appeals court nominees and allowing Trump to fill vacancies over the objections of home-state Democratic senators. As a result, Trump managed to flip three circuits to Republican control, and stuffed the Fifth Circuit with enough unhinged freaks to keep the Alliance Defending Freedom guys busy for decades to come.
Biden has since flipped one of those circuits back to Democratic control, and narrowed the Republican majorities on the Third and Seventh Circuits to a single vote. But at this point, it seems clear that Democrats will need more time—more than one presidential term, at least—to undo the damage Trump and McConnell did to the federal judiciary. Considering that Trump judges are set to be the most significant obstacle to progress for the foreseeable future, Democrats would be wise to do everything within their power to hurry up.
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