Judicial confirmations are a priority for Senate Republicans. Filling lower federal courts with nominees thought to embody traditional conservative judicial philosophy is a particular focus of Senate Majority Leader Mitch McConnell.
Judicial nominations are also becoming hotly contested and partisan. In 2013, the Democratic-controlled Senate eliminated the 60-vote rule for judicial appointments to avoid long delays. In 2017, the Republican-controlled Senate extended that rule to Supreme Court nominations.
The upshot is that judicial nominations are now largely passed on party votes. With a narrow Republican majority in the Senate, the Trump Administration has therefore been successful at appointing its nominees.
The U.S. Senate confirmed 13 nominees to federal district courts just before its August recess. Majority Leader Mitch McConnell had called for the Senate to confirm 19; the remaining six are expected to be confirmed in September, when Congress reconvenes. The Senate confirmed three by voice vote.
All confirmations involved federal district court vacancies. The American Bar Association’s Standing Committee on the Federal Judiciary had given each candidate a Well Qualified or Qualified rating. Of the 98 nominees for the 2019 Congressional Session, the ABA committee has only given one nominee a “not qualified” rating. That nomination is still pending.
The Senate confirmed six nominees rated “not qualified” in President Trump’s first two years in office, according to Bloomberg Law. Two of those nominees were to appellate circuit courts.
In the U.S. Court of Appeals, judicial confirmations have proceeded rapidly. There are currently only 4 vacancies. The Trump Administration’s most recent nominee for the 5th Circuit, however, is facing questions over his judicial philosophy from both parties.
From the floor of the Senate, McConnell said that “for too long fairly uncontroversial judicial nominees have been held up and delayed.” Of course, McConnell delayed a nomination to the Supreme Court by spearheading the effort to deny a hearing for Merrick Garland in 2016, exemplifying the now highly partisan nature of judicial appointments.
There remain 97 vacancies in U.S. District Courts, and 34 nominees for those vacancies. It appears that the days of the vast majority of judicial nominations passing easily by voice vote are behind us. Expect that an increasing number of federal judges will be appointed based largely on political affiliation.