Opinion: Judicial Appointments — The Long Game

While the media and House Democrats will focus their attention on investigating President Donald Trump in 2019, Senate Republicans will concentrate on the long game of reshaping the federal judiciary by confirming as many of President Trump’s judicial nominees as they can in 2019-2020.

Senate Majority Leader Mitch McConnell, R-KY, has already set a furious confirmation pace, assuring the nation’s federal courts will have a strong conservative tilt for years and maybe decades to come.

McConnell led the Senate in 2017-2018 to confirm 85 Trump appointed judges, including two Supreme Court appointments, Neil Gorsuch and Brett Kavanaugh. The Senate also confirmed 30 circuit court appeals judges—the courts directly below the Supreme Court—and 53 district court judges. The average age of Trump’s circuit court nominees is 49, relatively young for judges and ensuring the nominees’ lifetime appointments will span decades.

During the first two years of the Trump presidency, McConnell took full advantage of former Democratic Leader Harry Reid’s detonation of the “nuclear option” back in 2013 that eliminated the filibuster for judicial appointments and allowed confirmations by a simple Senate majority.

The new Senate expanded the Republican majority to 53 votes from the previous 51, meaning Republicans have three votes to spare, without any need for Democratic votes. The expanded Republican majority makes it much easier for nominees to be confirmed.

In addition, the composition of the Senate is likely to be more favorable, with centrists like Sens. Lisa Murkowski and Susan Collins having less power to delay nominations or the need to accommodate them with “compromise” nominees.

Currently, there are 118 vacancies at the district court level and 12 vacancies at the appellate court level, for a total of 130. If all the current vacancies get filled, then President Trump will have appointed roughly one quarter of the entire federal judiciary.

In the notoriously liberal Ninth Circuit Court of Appeals that has stymied some of Trump’s executive orders, there are six vacancies out of 29 judgeships. Should Trump nominees be confirmed, even the Ninth Circuit would be more judicially balanced.

Nevada currently has two open district court seats. One seat, in Reno, has been vacant for nearly three years, since Judge Robert C. Jones took senior status in February 2016.

The second Nevada vacancy, in Las Vegas, became open in June 2018 when Judge James Mahan also took senior status. With seven permanent judges, the loss of two has created a problem managing a very high caseloads.

Trump has yet to nominate anyone for either seat.

Procedurally, Trump has made 65 nominations that are still pending. Those candidates must be renominated in the new Congress. Sen. Lindsey Graham, R-SC, will be the incoming chairman of the Senate Judiciary Committee, replacing Sen. Chuck Grassley, R-IA. Graham will be responsible for scheduling nomination hearings.

Democrats, including Sen. Dianne Feinstein, D-CA, have accused McConnell and Grassley of “breaking every norm to stack the courts with young, ideological nominees.”

Democrats complain that Trump is not honoring the old "Blue-Slip" practice where home-state senators of a possible judicial nominee indicate their support before a nomination is announced. McConnell has made it clear that Democrats "Blue Slips" won’t block Trump judges. About all Democrats can do is to delay judicial appointments.

With the huge number of judicial vacancies, Senate Republicans have a rare opportunity to shape the federal judiciary with a wave of judges committed to limited government, economic freedom, the rule of law and adherence to the Constitution — a lasting legacy.