- - Wednesday, December 19, 2018

ANALYSIS/OPINION:

Before he was elected president, Donald Trump had never appointed a judge. Therefore, his instincts on judicial nominations were open to some question by those on the right.

To ease any doubt and in one of the shrewder moves in presidential political history, candidate Mr. Trump publicly released a list of judges he would consider for the Supreme Court before the 2016 election, a list which he then expanded. In two Supreme Court vacancies in his first two years, Mr. Trump stuck to the list, validating the trust that many conservatives placed in him.

While the Supreme Court picks received most of the attention and the successful confirmations of Neil M. Gorsuch and Brett M. Kavanaugh were consequential, below the surface Mr. Trump is reshaping the federal judiciary more deeply and at greater speed than any of his predecessors.

As his first two years in office come to an end, the Senate has confirmed 85 of Mr. Trump’s judicial nominees — two on the Supreme Court, 30 on the appeals courts and 53 on district and specialty courts. Another 33 nominees are awaiting Senate floor votes and some number of these will be confirmed before the Senate recesses. Conservatives would like to see all 33 confirmed before year’s end. Another 73 have been nominated, including 13 for courts of appeals and 60 for lower courts.

What does all this mean?

Roughly speaking, Republican-appointed judges will soon have a majority on five of the 13 regional appeals courts. That number could double over the next two years, as another 75 to 100 judges at all levels could be confirmed by the Republican-controlled Senate.

While the Democratic takeover of the House received a lot of attention during the midterms, the Republican majority in the Senate grew from 51 to 53, making it easier for judicial confirmations to advance. Instead of two Republican senators being able to block a judicial nominee, now four will be needed.

President Trump has not had this success alone. Recently departed White House Counsel Don McGahn deserves tremendous credit for vetting the nominees and moving their nominations expeditiously. Conservative allies like the Federalist Society and the Judicial Crisis Network have played a key role in marshaling support for Mr. Trump’s nominees.

Senate Judiciary Committee Chairman Chuck Grassley has devoted significant committee time to advancing judicial nominees at a record pace.

Senate Majority Leader Mitch McConnell made a keen strategic decision early in the Trump presidency. He recognized that 60 votes would be nearly impossible on most legislative priorities. Democrats pledged to require the maximum of 60 hours of floor time for each judicial nominee. Given the fact that bipartisan legislation accomplishments would likely prove elusive and judicial confirmations mean lifetime appointments, using up 60 hours of floor time for each nominee was time that Mr. McConnell was willing to endure.

The unprecedented commitment of floor time to consider and confirm judicial nominees has led to the fastest pace of confirmations for any president in history. And there is little that Democrats can do over the next two years to slow down the pace. This coming fall, many Democratic senators will be forced to choose between voting against a judge on the floor or campaigning in Iowa and New Hampshire.

There have been a few disappointments.

One recent example was the defeat of Thomas A. Farr, a North Carolina lawyer who defended his state’s voter identification law and was nominated for the nation’s oldest judicial vacancy, dating back to 2005. Mr. Farr’s nomination was sunk by two Democrats, led by New Jersey Sen. Cory Booker led a furious smear effort Mr. Farr, whose role in the Jesse Helms Senate campaign in 1990 came under scrutiny. Racial allegations against Mr. Farr were thin, and Mr. Trump could renominate him in January.

That defeat aside, Mr. Trump and Senate Republicans have performed admirably in nominating and confirming dozens of qualified judges for vacancies across the country at a dizzying pace.

Executive orders can be overturned. Regulations can be rolled back. A tax cut can be amended with new legislation. But a confirmed judge has a lifetime appointment.

When the history of the Trump presidency is written, his record of reshaping the federal judiciary will be seen as hugely consequential.

• Matt Mackowiak is president of Austin, Texas, and Washington, D.C.-based Potomac Strategy Group. He’s a Republican consultant, a Bush administration and Bush-Cheney re-election campaign veteran and former press secretary to two U.S. senators.

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