Circuit Court Nominations and Senate Obstruction
It is rapidly becoming a talking point among some activists on the left that Mitch McConnell busted all norms in obstructing Barack Obama’s circuit court nominees, and thus it is only fair that the Democrat pack the Court at the earliest opportunity. (Let us save for another day the other trending claim, fed by Joe Biden himself, that filling ordinary judicial vacancies is itself a form of court “packing” indistinguishable from expanding the size of the Court.)
President Donald Trump has not helped matters by repeatedly bragging that Obama left “a big, beautiful present” of judicial vacancies. Critics of Trump’s judicial appointees have been quick to answer that the only reason those vacancies exist is because of Senate Majority leader Mitch McConnell’s unprecedented obstruction of Obama’s nominees.
In truth, Trump inherited a number of vacant circuit-court seats that was only slightly larger than what Obama inherited (Trump did inherit significantly more district court vacancies). If Obama left him a “big, beautiful present,” Bush left the same present for Obama. Bill Clinton inherited a comparable number of vacancies when he was first inaugurated, though George W. Bush was somewhat more fortunate. Trump inherited far more open seats than did Ronald Reagan, but otherwise he found himself in much the same position as recent presidents. Neither Trump nor Obama were unique. They were reflective of what judicial appointment politics have looked like for the last three decades.
There is endless finger pointing in the war over judicial appointments that gets in the way of any effort at potentially deescalating what is a very unhealthy situation. There is plenty of bad blood and hurt feelings on both sides, and there is little to be gained by trying to determine who hurt whom first.
But we should at least be clear that Obama was not uniquely mistreated in regard to his circuit court appointments (the question of Merrick Garland is a separate issue, but Garland seems to be becoming a mere symbol of general obstruction of judicial nominees). The problem of Senate obstructionism was not a two-year anomaly in 2014-2016 (though those two years were an extreme version). It has been far more deep rooted and persistent than that.
There is no question that Donald Trump has benefited from the combination of a relatively large number of open seats in the lower courts, procedural reforms that made it possible for the Senate to confirm judges on a simple majority basis (starting when Democratic leader Harry Reid nuked the filibuster in 2013), and same-party control of the Senate (the Democrats promptly lost control of the Senate in 2014 and so had little opportunity to take advantage of the new rules). As a result, Trump has been able to appoint a relatively large number of circuit court judges in a single term. He would not have been able to do so had not all three things been true.
Details on circuit court nominations and confirmations over the past forty years below.
As I have detailed in a paper that can be found here, the obstruction that Obama encountered for his lower court nominations had become par for the course over
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