President Donald Trump’s drive to reshape the federal judiciary with Conservatives is likely to slow in 2020 as most of the remaining jobs in California and other blue states are vacant.
Almost 84% of the currently almost 80 open positions for district courts are in states with at least one Democratic senator and 53 in blue states or in states with two Democratic senators. This is evident from Bloomberg Law’s analysis of the Federal Judicial Center’s data.
That means that this year – an election year that has much less time to get things done in the bitterly divided chamber with a third of the seats up for grabs in November – the White House will have to work with Democratic senators to get the judges’ endorsement may agree on one of Trump’s most successful priorities or possibly accept a lower rate of return.
In the short term, however, there is no slowdown for the Republican-led Senate. Minutes after lawmakers acquitted Trump on February 5 for two impeachment trials, Majority Leader Mitch McConnell (R-Ky) restarted the judicial nomination process. He picked five candidates to vote this week.
If approved, the White House and its allies in the Republican Senate will have only one seat on the Conservative Court of Appeal and 10 vacant or expected posts in the Red State District Courts. Most of the judges Trump appointed in his first three years in office were Republican states.
The composition of the remaining vacancies could play into the hands of the Democrats. Senators still have a say in who will be nominated for county or judicial trials in their state, and Democrats could use this custom during an election year with the prospect of cheaper candidates on the horizon.
“If Democratic Senators believe they have a chance to retake the White House, there is less incentive to approve any of Trump’s judges, especially if Trump doesn’t work with them to find candidates who are accessible to them,” said Rorie Solberg, a professor of political science at Oregon State University who researches and writes on judicial officer nominations.
“It’s the same calculation that Mitch McConnell made to keep Scalia’s seat open so that Obama couldn’t get a seat in the Supreme Court,” Solberg said, referring to Republican efforts to block Barack Obama’s election to the seat of Justice Antonin Scalia less than a year before the 2016 election.
Republicans may need to take other steps. They could employ strategies to get more judges to adopt a form of partial retirement called “senior status”, to create more district and appeals courts in areas that suit their preferences, and to ease the flow of conservatives Voters maintain gratifying appointments from judicial officers.
“I think the message that needs to be delivered to Republican-appointed judges is,” You have a short window of time here to become a senior or retire if you are interested in your replacement, “said Mike Davis , President and founder of the Conservative Justice Advocacy Article III Project, believes Trump will win re-election and notes that the strategy is a precautionary measure.
Davis said the personal diplomacy of Justice Committee chairman Lindsey Graham, a Republican from South Carolina, will be vital in filling the vacancies in the blue state. Davis worked on nominations for former Republican Justice Committee Chairman, Senator Chuck Grassley, Iowa.
Looks like “Our boys first”
To deliver on his 2016 campaign promise, Trump worked with McConnell to reshape the judiciary with Conservatives. To date, these efforts have resulted in 183 district and appeals court appointments and two Supreme Court justices, Brett Kavanaugh and Neil Gorsuch.
Much of that focus has been on the appointment of district courts in red states and appeals courts, which the administration can fill with fewer hurdles due to a change in Senate practice.
Appeal court judges’ confirmation was made easier for the White House when Grassley, as chairman of the judiciary, halted a practice whereby Senators could prevent a candidate from going through the process by not returning a paper known as a “blue slip”.
Blue slip-ups were a courtesy “intended to encourage pre-nomination consultation, and not to empower a senator to block a candidate for political or ideological reasons,” Grassley said in 2018.
However, the need to return blue slips from both senators to advance a candidate remains for district court candidates. There are many more district judges compared to seats in district courts.
“Regarding pending jobs at the federal district court level, Graham said, ‘When it comes to district court judges, no one moves forward unless we get approval from home state senators. “This applies to federal district court seats in New York, California and the rest of the country,” said a spokeswoman for the Senate Judiciary Committee.
“Put simply, the committee is ready to process nominations at the federal district court level as soon as it receives approval from the respective home state senators,” the spokeswoman wrote.
However, according to a recent report by Russell Wheeler, a colleague at the Brookings Institution, candidates for the blue state face significant delays from nomination to confirmation after the Senators give their stamp of approval.
While there might be other dynamics that aren’t obvious, “at first glance it really looks like we’re putting our boys first,” Wheeler said, referring to a recently released report covering the first three years of court confirmations under Trump.
Red state nominations take approximately 217 days to go from nomination to confirmation, but blue state nominations take approximately 412 days, according to Wheeler’s research. This is a departure from the previous administration, which took 195 days for Democrat Obama’s blue state candidates to be confirmed and 208 days for red state candidates.
“My impression is that the government is negotiating with Democratic senators,” said Wheeler. “But it’s one thing to nominate her and another to get McConnell to get her to the top.”
Conservatives say delay is a result of democratic obstruction of the process.
“In my opinion, Democrats created these conflicts by objecting to candidates more than usual because it’s Trump,” said Thomas Jipping, who served as Republican Justice Committee chairman on nominations for former Utah Senator Orrin Hatch .
Jipping is Associate Director of the Edwin Meese III Center for Legal and Justice Studies at the Conservative Heritage Foundation.
McConnell and Chuck Schumer (DN.Y.), Senate Minority Chairman, have not returned requests for comment on their expectations for judicial affirmation this year. The White House did not immediately comment.
In the end, all roads lead back to the White House, where the nomination begins.
Carl Tobias, a law professor at the University of Richmond, said these consultations varied from state to state. In states where the White House has worked with Democratic senators like Illinois, candidates have prevailed, said Tobias. Illinois has three Trump-appointed district judges, and more are in the pipeline.
But in other countries like California, the nominees have lagged behind. The Senate has not approved candidates for Trump District Courts in California, despite the state courts asking to fill their vacancies immediately.
When it comes to consultations with blue states in general, Tobias said: “I don’t think the White House tried very hard.”