In President Trump’s first two-and-a-half years in office, records show that his judicial nominees faced unprecedented opposition from the Senate, with Democratic senators voting against potential judges in higher numbers than any time in American history.
“For too long, thoroughly uncontroversial judicial nominees just like these have been held up and delayed by our Democratic colleagues,” Majority Leader Sen. Mitch McConnell (R-Ky.) said on the Senate floor. “Uncontroversial district judges used to be confirmed promptly in big groups by voice vote. These days, in a kind of protest theater, our colleagues across the aisle usually insist that we hold a cloture vote and then a rollcall confirmation vote on each one.”
To this point in his first term, 48.6% of confirmed Trump nominees for Article III courts—the federal courts mentioned above plus the U.S. Court of International Trade—were opposed by more than a quarter of voting senators. Just 2.1% of Obama’s nominees and 2.8% of George W. Bush’s nominees faced such close votes.
Nevertheless, Trump was successful in installing judges on the circuit courts, filling 43 vacancies in the White House during his time—17 more than any of his last five predecessors. Only Bill Clinton, who appointed 154 judges in just over two-and-a-half years, tops his total of 146 judges confirmed to the courts of Article III at this point in his term.
Heritage Foundation Senior Legal Fellow Tom Jipping argued that Trump’s nominees are as well-qualified as previous presidents and that what Democrats do is a sharp departure from Senate norms.
“The only explanation is that they are using Trump’s nominees as proxies for Trump,” he said. “They have converted the confirmation process into a front in their war against the president. For all practical purposes, they’re not even considering the qualifications of the nominees.”
“This is a tactical, a strategic decision that they are going to use this process to fight the president, and that’s never been done before,” he added.
Judge Amy Coney Barrett, Seventh Circuit Court of Appeals, was one of Trump’s picks facing a particularly contentious battle for confirmation. She was criticized at a September 2017 hearing for her Catholic faith and ties to a Christian group.
“The dogma lives loudly within you, and that’s of concern,” Sen. Dianne Feinstein, D-Calif., told Barrett before she was eventually confirmed 55-43.
Howard Nielson Jr., who was confirmed at the Utah District Court on a 51-47 vote, faced resistance from Democrats who cited his past advocacy against same-sex marriage and the Bush administration’s work.
“I think if you’re running for president in a Democratic primary and more and more progressives are raising concerns about what happens to the courts under Trump, it stands to reason that you’d take a more skeptical approach to Trump judges,” said Brian Fallon, executive director of Demand Justice.
The continuous resistance of the Democrats to the judicial nominees of the White House typically has no effect on confirmation. The judges only need a majority to be confirmed and the Republican-controlled Senate rarely lacks support. But their resistance has prompted criticism from Republicans and conservative groups, who claim that Democrats are just playing politics.
“They’ve lost their minds,” said Sen. John Cornyn, R-Texas, a member of the Senate Judiciary Committee. “It’s just reflexive so I don’t think it’s any reflection on the nominees in particular. They’re just opposed to anything and everything the president is for.”