- The Washington Times - Tuesday, October 16, 2018

President Trump is smashing the record for appointing judges to the powerful federal appeals courts with 29 picks confirmed, helping him put his stamp on the judiciary well beyond the Supreme Court.

He has had less of an impact on the lower district courts, where he ranks near the middle with his predecessors of the past few decades. He also has had two Supreme Court nominations confirmed.

For conservatives, the pace of action is a major victory, particularly in the face of overwhelming opposition from liberal activists and Senate Democrats, who have used extreme delaying tactics to try to limit Mr. Trump’s influence on the shape of the courts.

President George H.W. Bush, the only other president to have broken the 20-judge mark at this point in his first term, had seven fewer than Mr. Trump in 1990.

“For the most part, they have prioritized appeals court nominees, and that is the right strategy,” said Curt Levey, president of the conservative Committee for Justice.

The 13 circuit courts of appeals, which have 179 judgeships, are the key middle ground between the district and the Supreme Court. With the justices hearing oral arguments in perhaps only 80 cases a year, that leaves much of the heavy legal lifting in the circuit courts, where rulings set precedent on issues such as gun rights and immigration in their respective parts of the country.

District courts are the front lines, and there Mr. Trump has been slower in winning confirmations.

His 53 district judges place him well behind President Clinton, with 107, and President Kennedy, with 99. He also is behind Presidents Reagan and George W. Bush — though well ahead of President Obama’s 30 district judges at this point in his term.

All told, Mr. Trump has appointed 84 judges to the district, circuit and high courts out of a total of 870 Article III judgeships. There remain 132 vacancies.

The 84 appointments are nearly double the 43 that Mr. Obama had as of mid-October 2010.

Mr. Trump has been largely successful because Senate Republicans — particularly Majority Leader Mitch McConnell and Judiciary Committee Chairman Chuck Grassley — kept a Supreme Court seat and other vacancies unfilled in the final year of Mr. Obama’s tenure.

Marge Baker, executive vice president of the People for the American Way, said Republicans have kept up a “wicked pace” of confirmations that doesn’t give senators enough time to fully vet nominees.

She pointed to several Trump picks for district courts who had to withdraw after their lack of preparation for judgeships became clear during their hearings.

Ms. Baker also cast an eye to November and December. The Senate is slated to return for a lame-duck session after the midterm elections, and Republicans have teed up dozens more judges for possible floor votes.

“I expect Democrats to be insisting on significantly more debate and using whatever procedural tools they have at their disposal to slow this down,” Ms. Baker said.

If Democrats force the maximum amount of time per nominee, it can take the Senate an entire week, with no other major floor business transacted, to confirm five judges.

That calculation was critical to the deal struck last week by Mr. McConnell, Kentucky Republican, and Minority Leader Charles E. Schumer, New York Democrat, allowing the Senate to confirm 15 judges and then leave Capitol Hill until after the Nov. 6 elections.

The Senate would have been able to confirm about 15 judges had it stayed in session and devoted the next three weeks — the time until the election — to confirmations.

Three of those confirmed last week were appellate judges, and 12 were for district courts.

They were the first judicial nominees to receive confirmation votes after the Senate’s partisan battle over Supreme Court Justice Brett M. Kavanaugh, who was sworn in this month.

Conservative advocates say fulfilling the lower court judgeships, in combination with Justice Kavanaugh’s confirmation, will energize the president’s supporters ahead of the elections.

“If the Republican [lawmakers] are smart, they will stress this because people aren’t dumb. They know that the federal judiciary is more than just the Supreme Court,” Mr. Levey said.

Mr. McConnell has steadily processed appeals court judges as they are cleared by the Judiciary Committee. Now that more than 40 pending district court nominees are awaiting floor votes, he will prioritize district court nominees once Congress returns, analysts predict.

Carrie Severino, chief counsel of the Judicial Crisis Network, said she can’t imagine Mr. McConnell slowing down the judicial confirmations ahead of the new year.

“Even at the pace this administration has been going, there have still been more vacancies than there have been confirmations,” Ms. Severino said.

The Judiciary Committee has scheduled a hearing for one appellate judgeship and five district court nominations for Wednesday, while the Senate is in recess. Another hearing is slated for next week.

Committee Democrats have criticized the continued hearings ahead of the midterm elections and sent a letter late Monday to Mr. Grassley, Iowa Republican, asking him to postpone the hearings.

“The committee has never before held nominations hearings while the Senate is in recess before an election. The handful of nominations hearings that have been held during a recess have been with the minority’s consent, which is not the case here — in fact, we were not even consulted,” their letter read.

Mr. Grassley refused to postpone Wednesday’s hearing, saying the committee’s top Democrat, Sen. Dianne Feinstein of California, had agreed to that date after requesting three other delays.

“It’s unfair to the nominees, who have already flown to Washington, D.C., and made travel arrangements for their families, to further delay this hearing. And it’s unfair to the American people,” said Mr. Grassley, stressing the number of federal judicial vacancies.

“The judiciary simply cannot afford further obstruction from your side,” he said.


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