There’s widespread belief that Donald Trump is lagging behind past presidents in submitting nominations for key posts in his administration.
For the most part, that is true. Except in one area that could help Trump leave behind his biggest legacy.
When it comes to nominating judges to the federal bench, Trump is moving at a breakneck pace. And when you add in how quickly he’s going about nominating for vacant US attorney positions, the number of nominees in these crucial areas is dwarfing those of past administrations this early in a presidency.
On the federal bench, virtually all of the vacancies Trump has been rushing to fill are lifetime appointments.
“This will be the single most important legacy of the Trump administration,” Democratic Sen. Chris Coons of Delaware, a member of the Senate Judiciary Committee, told Business Insider. “They will quickly be able to put judges on circuit courts all over the country, district courts all over the country, that will, given their youth and conservatism, will have a significant impact on the shape and trajectory of American law for decades.”
“I do think this deserves more attention given the consequence, the significance of what will eventually be a wholesale change among the federal judiciary,” he continued.
While only three of Trump’s nominees for the federal bench — aside from Supreme Court Justice Neil Gorsuch — have been confirmed by the Judiciary Committee to date, the sheer number of nominees he’s sent to the committee — both for federal judgeships and US Attorney slots — is staggering.
Through July 14, roughly a week shy of Trump’s six-month anniversary in office, he had nominated 18 people for district judgeship vacancies, 14 for circuit courts and the Court of Federal Claims, and 23 for US attorney slots. During that same timeframe in President Barack Obama’s first term, Obama had nominated just four district judges, five appeals court judges, and 13 US attorneys. In total, Trump nominated 55 individuals. Obama, just 22.
“What strikes me about the Trump administration’s judicial nomination process is how quickly they have moved,” Coons said.
But there’s a catch.
Of those 55 nominees, 45 are from states, or for jobs in states, where Trump won in last fall’s election. If you remove the positions that are Washington, DC based, that number becomes 45 of 48 — a remarkably high 94%. Just 64% of Obama’s initial nominees hailed from states he carried in the 2008 presidential election.
And there’s a reason for that.
It’s known as the “blue slip.” And it’s Senate tradition to not advance any judicial or US attorney nominee without having the “blue slip,” or consent of both home-state senators. In states with two Republican senators, Trump has made 30 of his 55 nominations. In states where two Democratic senators serve, he has nominated five. And four of those are for circuit court or Court of Federal Claims openings, positions that Senate Judiciary Committee chairman Chuck Grassley, an Iowa Republican, has said the blue slip rule is not quite as important for in comparison to district judgeships.
A White House spokesperson told Business Insider that the Trump administration is “working with and extensively consulting all senators nationwide in order to complete the nomination process.” The official added that the administration is “committed to filling all the US attorney and judicial vacancies as quickly as possible.”
Coons said he and his fellow Democratic senator from Delaware, Tom Carper, are working with a judicial nominating advisory committee to help fill two district court vacancies in the state at the moment. The senator added that he hopes and expects the White House to consult him and Carper, and for Grassley to continue the blue-slip practice.
But he added that, so far, he feels that Grassley and the ranking Democrat on the Judiciary Committee, Sen. Dianne Feinstein, have done an admirable job in dealing with the massive number of nominations coupled with intense committee work involving the investigation into Russian election interference.
The furious pace of nominations come as Trump is faced with an impressive number of vacancies to fill. As of Tuesday, the federal bench is facing 135 vacancies. Trump fired half of the 93 US attorneys in March, creating a near-immediate need to begin nominating, although seeking to quickly replace US attorneys is not uncommon at the start of a new administration. In August 2009, Obama was faced with 85 vacancies on the federal bench.
Coons attributed the discrepancy in vacancies to “unprecedented obstruction by the Republican majority in the Senate in the latter years of the Obama administration” that led to many of these vacancies remaining unfilled.
The Trump administration’s ability to pack the federal bench with conservatives is the fruit of a years-long effort by conservative legal groups and Republican senators — and they couldn’t be more excited.
“Really?!” exclaimed John Malcolm, the vice president for the Heritage Foundation’s Institute for Constitutional Government, in an interview with Business Insider when told of how Trump is far outpacing Obama in terms of judicial nominations. “I didn’t know that but I am pleased to hear it.”
Malcolm said the credit for such a quick start in handling the judicial vacancies belongs with White House Counsel Don McGahn and his team of lawyers. On the US attorney front, Malcolm said the Justice Department plays a vital role.
Justice Department spokesman Ian Prior told Business Insider the administration is working closely with Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein to bring forth nominees. Even as both Sessions and Rosenstein find themselves in Trump’s doghouse for Russia-related matters, the pair has exerted influence in plugging these many voids.
But when it comes to the judicial nominees, conservative organisations such as Heritage and The Federalist Society have seen their influence grow. Both groups suggest a number of candidates for such openings — Trump prominently used suggestions from both to form his much-publicized list of judges to consider for the Supreme Court — and both have continued to see suggestions they have made become nominees (although Malcolm made clear he did not want to make it seem as if he was taking credit, pointing to McGahn and his team as the group which deserves credit).
As Malcolm put it, this is an area where Trump has the opportunity to create an “extensive” legacy.
“Who the judges are in these lower courts have a significant impact on the direction of the law,” he said. “I mean, the federal courts of appeals hear about 50,000 cases a year. The Supreme Court only hears about 75 cases a year. And they tend to take cases in which there is a split in the circuit, and if all of the circuits are ideologically aligned, you’re going to have fewer of those splits.”
Coons said the administration has clearly relied on The Federalist Society to do “virtually all their selection and vetting” for the nominees, adding that both the speed of nomination and the age of the nominees “have been striking.”
“Most have come before the committee so far have been a decade younger than the average nominee in previous administrations,” he said. “And, you know, this partly reflects a longterm strategy by conservative judicial activists who, over the last 30 years, have developed a very strong bench, pun intended, of highly qualified, young lawyers, who are educated and [from] well-regarded law schools and are active in The Federalist Society and had clerkships with senior judges and are poised to be nominated and confirmed to take advantage of these openings.”
One of the Trump administration’s most controversial nominees, John Bush, was confirmed last week to the 6th Circuit Court of Appeals. Bush, a Kentucky lawyer, cleared the Senate with unanimous Republican support and unanimous Democratic opposition.
Bush came under fire for past blog posts he wrote under a pseudonym. Those included comparisons he made between abortion and slavery, calling them “the two greatest tragedies in our country.” Bush additionally called for the gagging of House Minority Leader Nancy Pelosi while she was House speaker and promoted the Obama birther conspiracy.
Another nominee, Damien Schiff, a California attorney, came under fire for blogging that Supreme Court Justice Anthony Kennedy was a “judicial prostitute” and wrote that schools were “teaching ‘gayness,'” in response to efforts aimed at preventing bullying of LGBTQ students.
“It seems that they’re putting speed in front of carefulness, thoughtfulness, and ensuring that the individuals who serve lifetime appointments on our federal bench protecting the constitutional and legal rights of so many people, that I question whether they’re doing a thorough job on vetting these individuals,” progressive law organisation Alliance for Justice’s legal director Dan Goldberg told Business Insider.
Pointing to Bush, Goldberg asked if this was “an individual they vetted,” adding that he said some “offensive, despicable things.”
“I think there are two questions for the administration: Did they know about that and choose to nominate this individual anyways? Or is their vetting so sloppy that they didn’t bother to look through some of these offensive, despicable things that Damien Schiff said about a sitting Supreme Court justice?” he continued. “So I think there are very real concerns with the speed by which they apparently are sending names without careful scrutiny.”
Goldberg too acknowledged that this is an area where Trump has pretty broad ability to influence the law for a generation or more.
“I think the American people have to realise that the Supreme Court takes only approximately 80 cases a year,” Goldberg said. “And Neil Gorsuch, somebody who will in the next generation erode away critical rights and legal protections for workers, for persons with disabilities, for minorities, for LGBTQ Americans, and [Trump’s] going to do the same thing in the lower courts, where approximately 99% of the cases end.”
But Goldberg expressed appreciation for Grassley appearing to stick by the blue-slip practice, which provides Democrats with some home-state power even while they are in the Senate minority.
“I know he is getting a tremendous amount of pressure from his colleagues and right-wing organisations to get rid of that really critical Senate custom,” he said. “But as long as that blue-slip process is honored, the Democrats have a right to insist on an ability to review nominees’ records thoroughly and that the White House will reach out to consult with them and put forward bipartisan and mainstream nominees instead of extremists.”
Carl Tobias, a University of Richmond law professor and expert on judicial selection, told Business Insider that Americans can “expect” all of the nominees to “be conservative.”
“He ran on that,” Tobias said. “So that’s not, I don’t think necessarily an issue unless someone is outside the mainstream.”
He said the White House is “doing a pretty good job of moving people,” although he doesn’t think there has been enough consultation between the White House and home state senators, particularly in states with Democrats, on both the judicial and US attorney fronts.
It’s “created some problems,” he said, adding that the consultation “pays off” for the administration.
“Because the home state senators really have an important role to play,” he said. “And it’s one of the last pieces of patronage they have. So they’re really defensive about that. I mean they want to have a say so of who the US attorney is in their state, and who is on the bench.”
Tobias made note of just how many of the initial nominees were in states that Trump won — with many openings in places like Alabama and Tennessee getting filled early on while critical vacancies in states like California and New York remain unaccounted for.
The professor said the Trump administration’s approach to filling the vacancies by targeting what he termed the “low-hanging fruit” first may be “a very efficient way” to go about it.
But there’s one problem.
“They’re not being systematic in terms of priorities,” he said. “So for example, there are 52 emergency vacancies, and those should be the ones that get filled first, not just the ones that happen to have Republican home state senators.”
Tobias said he also sees this process as an area where the Trump administration can leave a real lasting legacy — regardless of how his presidency plays out on other fronts.
“I think in a lot of other areas there have been some real question marks, but it’s an area where there’s a huge opportunity given the number of vacancies, and they seem to be capitalising on that,” he said. “I guess what’ll be interesting to see is that once they get all of the low-hanging fruit, how successful will they be in the tougher situations.”
“Those chickens are going to come home to roost because there are just so many vacancies,” he added. “You need all the cooperation and help you can get.”