As 2017 draws to a close, let us look back at the Trump Administration’s push to fill judicial vacancies, and compare the numbers from his first year to those of the past few presidents (all numbers are drawn from the Federal Judicial Center).
In the first year of his presidency, Trump submitted 69 nominees to Article III courts, more than any other modern president. Compare the following:
As seen from the table above, Trump has submitted more district court nominees in the first year of his presidency than any of the last five presidents. He also submitted more court of appeals nominees than any president other than George W. Bush. While this is partially a function of a higher number of vacancies that Trump inherited at the beginning of his term, it is nonetheless a testament to the focus on judges by White House Counsel Don McGahn and his team.
In 2017, the Senate confirmed 19 of Trump’s nominees: Supreme Court Justice Neil Gorsuch; 12 judges to the U.S. Court of Appeals, and 6 to the U.S. District Courts.
As seen from the chart, while Trump has had more appellate nominees confirmed than the other modern presidents, he has also had the fewest district court nominees confirmed. This is largely the result of Senate Majority Leader Mitch McConnell’s prioritizing of appellate nominees when calling a vote. In general, McConnell has largely ignored district court nominees, focusing on quick votes on the appellate picks.
This prioritization means that, as a whole, Trump has seen a smaller percentage of his judicial nominees confirmed than any of the last five presidents.
Of the 69 nominees sent to the senate this year, three have already been (informally) withdrawn by the Administration: Jeff Mateer; Matthew Petersen; and Brett Talley. This is unusual for two reasons: first, as of this point in their presidencies, none of the past five presidents had withdrawn a single nominee; and second, in general, this represents a higher percentage of “nominee failure” than previous presidents.
In comparison, out of all the nominations made in their first year, Presidents Reagan, and George H.W. Bush saw every single nominee confirmed. Presidents Clinton and Obama each submitted one nomination in their first year that was ultimately not confirmed: Theodore Klein to the U.S. District Court for the Southern District of Florida; and Louis Butler to the U.S. District Court for the Western District of Wisconsin. While President George W. Bush had to eventually withdraw four of his first year nominees: Terrence Boyle; Miguel Estrada; Charles Pickering; and Henry Saad, all of these nominees were blocked either through home-state opposition, or through the filibuster. As such, the defeat of three nominees in a post-filibuster universe is particularly notable.
I wrote earlier in the year that the Trump’s administration’s nominees have been relatively less diverse than those of previous presidents. At the time of that post, Trump had nominated 36 federal judges. Looking at all 69 of his appointments, it is important to re-evaluate the picture:
Trump has nominated four women to the courts of appeals, and twelve women to the district courts. As such, 23% of Trump’s judicial nominees are women. In comparison, 38% of Obama’s judicial nominees from his first year were women, as were 25% of George W. Bush’s, 37.5% of Clinton’s, 17% of George H.W. Bush’s, & 5% of Reagan’s.
Trump has nominated one African American nominee: Judge Terry Moorer, one Hispanic nominee: Fernando Rodriguez; and four Asian American nominees: Judge Amul Thapar; Judge James Ho; Karen Gren Scholer; and Jill Otake. As such, 9% of Trump’s judicial nominees are lawyers of color.
While Trump nominees have drawn some criticism for their youth and inexperience, overall, their ages are not significantly different than those of prior appointees.
Trump’s appellate nominees so far have an average age of 49.5, while his district court nominees have an average age of 52.5. As noted earlier, this is comparable to the ages of Bush, Clinton, and Obama nominees.
Reviewing his first year in office, many observers agree that judicial appointments constituted an area of success for President Trump. Looking at the empirical evidence, it is clear the Trump Administration has moved quickly on nominations, submitting more judges to the senate than any other recent president. However, when it comes to confirmations, they still lag behind other recent presidents.
Furthermore, the data suggests that declarations of a “flood” of young conservatives reaching the bench are hyperbole. As noted above, on average, Trump’s nominees are comparable in age to those of other recent presidents. Furthermore, McConnell’s focus on appellate confirmations has caused district confirmations to lag. As such, the district courts, where a significant portion of American caselaw is decided, remain, as of yet, untouched by Trump.