President Donald Trump seized the public’s attention when he capitalized on the passing of Supreme Court Justice Ruth Bader Ginsburg by promptly nominating her successor, Amy Coney Barrett, and duly cementing a powerful conservative majority on the Supreme Court before Americans could even appropriately celebrate the life of the pathbreaking jurist. This accelerated Senate confirmation one week before the presidential and senatorial elections illuminates the extreme hypocrisy of President Trump and Senate Republican Leader Mitch McConnell (KY), who refused to hold a Senate hearing on President Barack Obama’s nomination of D.C. Circuit Chief Judge Merrick Garland arguing that Garland’s nomination was too close to the 2016 election, even though he was nominated over 230 days beforehand. The Grand Old Party (GOP) approach to Supreme Court nominations acutely mirrors its treatment of the federal circuit and district court selection processes and imposes equally serious consequences.
Circuit and district confirmations are a chronic problem of United States governance. Republicans and Democrats have sought to extract partisan advantage from the selection process, which has increasingly politicized it and created a substantial number of lower federal court vacancies that complicate expeditious, inexpensive, and fair dispute resolution. With the 2020 presidential and senatorial elections only hours away, one final consideration for voters should be the appellate and district court appointments records of President Trump and Democratic Party nominee Joe Biden. These records deserve close review so that voters can ascertain the difference between Biden’s approach to this major presidential responsibility as compared to President Trump’s nomination and confirmation record. Throughout President Obama’s tenure, Vice President Biden derived invaluable experience by spearheading court appointments, which supplemented his thirty-plus years of service as a preeminent Judiciary Committee member—seven as the Chair. This experience demonstrates that Biden is uniquely qualified to assume this crucial presidential responsibility.
Comparing the two nominees’ judicial appointment records and philosophies is not merely an academic exercise: the nominees themselves made selection an essential issue of the election. Biden has pledged to confirm a Black woman to the Supreme Court if presented with the opportunity. Trump, on the other hand, expressly vowed to release a new “short list” of High Court prospects and to confirm a Justice should another vacancy occur (both promises that he has already fulfilled).
Ever since Trump first became a presidential candidate during 2016, the President has exclaimed that he would “[m]ake the [j]udiciary [g]reat [a]gain” by confirming ample conservative, young nominees, a plan that GOP senators and their leader McConnell have vociferously endorsed and implemented. They were remarkably successful—the President confirmed three able, conservative, young Supreme Court Justices plus fifty-three analogous court of appeals judges.
However, these efforts have levied many costs on the federal bench and the nation. As of the date of this publication, there are only two openings in 179 appeals court judgeships around the country—the fewest since Ronald Reagan’s presidency—and fifty-five district court vacancies, thirty-seven of which constitute “emergencies.” Trump has effectively ignored these district court openings and the thirty-seven protracted emergency seats.
He has also broken records for appointing young court of appeals jurists with extremely conservative views on the administrative state, executive power, and the “culture wars”—including discrimination, religious liberty, and gun control. The President has concomitantly undertaken limited endeavors to identify, scrutinize, nominate, and confirm ethnic minority, female, and LGBTQ individuals, even though increased diversity enhances the bench. Greater ethnic minority, gender, and LGBTQ representation improves decision-making by affording differing views on questions regarding abortion, constitutional law, and other complex questions that jurists face. Increased diversity also restricts biases which decrease justice and enlarges public confidence in the judiciary by reflecting the ethnic, gender and sexual orientation diversity of the United States. Particularly disturbing is the fact that one third of Trump appointees have decidedly anti-LGBTQ records. Finally, President Trump has yet to marshal a sole Black appellate court circuit nominee and has only confirmed a single Latinx, LGBTQ jurist. The negative ramifications of these appointments are especially pervasive in jurisdictions that Democratic senators represent, which the President has disregarded.
Moreover, Trump denigrates jurists who have ruled against him by invalidating some of his political governance efforts—efforts that he ostensibly expects will improve his reelection endeavors—characterizing those jurists as “Obama” or “so-called” judges. He also castigates jurists for putatively threatening national security and related pressing interests with their opinions, while simultaneously urging that judges defer to the recommendations that executive branch officers develop.
President Trump correspondingly rejects, modifies, or downplays salient rules and conventions, which have guided appointments over decades. For example, in contrast to practically all modern administrations, this White House only nominally consults politicians from states to address vacancies. These politicians have greater familiarity with highly qualified candidates and, thus, if consulted, would help improve nomination selection. Moreover, the Administration curtails American Bar Association (ABA) participation in selection, only negligibly considering most efficacious ABA investigations and counsel ratings, even though all Presidents since Dwight Eisenhower—except for George W. Bush—have relied on ABA input in their nomination decisions. The ABA’s comprehensive network of expert evaluators can help identify candidates who lack the requisite qualifications vis-à-vis experience, intelligence, diligence, ethics, independence, and judicial temperament.
The Republican Senate majority has also violated longstanding conventions. For instance, the party has eviscerated the venerable senatorial policy of “blue slips”—permitting large numbers of GOP senators from jurisdictions with plentiful circuit openings to stop many nominees in the Obama years—with minimal justification for the drastic alteration. The Judiciary Committee hearings are also no longer rigorous, in part because GOP members discourage robust nominee questioning or discussion and do not adequately scrutinize ABA ratings before voting on nominations. These missteps then enable controversial nominees to attain party-line committee and confirmation ballots.
In short, President Trump, numerous prominent executive branch officials, and the Senate have persistently ignored the Constitution, legislation, rules, and customs across a broad spectrum of contemporary nominations and confirmations. Trump and McConnell, however, use this record as a publicity stunt, concomitantly reminding the public that the GOP has appointed a large number of conservative judges, thus helping to advance the GOP’s political future. Yet, each of these reminders clearly disregards Republican inability to fill substantial district and emergency court vacancies and confirm ethnic minority, female, and LGBTQ aspirants, particularly in “blue” states. Those phenomena undermine the realization of presidential constitutional duties to nominate and confirm fine jurists, senatorial responsibilities to advise and consent, and the judiciary’s critical duty to promptly, economically, and fairly treat huge caseloads. The actions also weaken the Constitution, the rule of law, separation of powers, and statutes’ constructive implementation. Finally, they politicize the courts and severely undercut citizen respect for the presidency, the Senate, the judiciary, the nomination and confirmation processes, and jurists who capture appointment.
The chief executive’s anachronistic selection initiatives contrast markedly with the powerful experience of Joe Biden, who served as Vice President for Obama and carefully assumed considerable responsibility for appointments during his tenure. Biden also deftly represented Delaware for more than thirty years on the Judiciary Committee and chaired the panel across seven years, professionally engaging in nominations and confirmations for a substantial majority of active federal court jurists.
Biden’s service as the Judiciary panel Chair furnishes an instructive window on his significant capabilities and his concerted emphasis on the need for bipartisanship. As Chair, Biden felicitously processed myriad well-qualified, consensus nominees suggested by both Democratic and Republican Presidents, working cooperatively and smoothly to confirm many circuit and district court nominees. For instance, during George H.W. Bush’s presidency, Biden collaborated with abundant colleagues to pass a comprehensive judgeships statute, which authorized eleven new appellate court, and sixty-one new district court, positions, and to confirm many jurists during the later part of Bush’s tenure.
Thus, considering his background, Biden is uniquely situated to completely appreciate, carefully respect, and thoroughly implement numerous efficacious constitutional and congressional dictates, chamber rules, and traditions from the perspectives of the Senate, the Judiciary Committee, and the White House. He systematically deployed procedures—such as meticulous consultation of politicians from home states, exceptional ABA participation and input, court of appeals blue slips, robust committee evaluations, hearings, and candidate discussions, and vigorous chamber floor debates—which promoted the nomination and confirmation of substantial additional highly-qualified, comparatively mainstream jurists, who have helped to ensure that courts discharge their critical responsibility to decide cases promptly, inexpensively, and fairly. Finally, Biden fully comprehends the pressing need to restore and enhance court ideological balance and diversity vis-à-vis ethnicity, gender, sexual orientation, independence, and experience.
In sum, Trump and the Republican chamber majority have eviscerated regular order that perennially governed judicial selection by jettisoning, ignoring, and diluting the rules, customs, and procedures that fostered expeditious nomination and confirmation of well-qualified, moderate submissions. Instead, they have increasingly politicized the selection process in an effort to appoint numerous exceptionally conservative, young appeals court judges. These practices have undermined swift, inexpensive, and equitable dispute resolution by allowing mounting district court vacancies to reach 140, nearly eighty of which were emergencies.
In striking contrast, Joe Biden possesses almost half a century of salient experience as a Judiciary panel member, its Chair, and effective Vice President. During his tenure in these positions he deployed regular order by avidly consulting home state politicians and other Senate colleagues, and helping nominate and confirm highly qualified, mainstream nominees.
Carl Tobias is the Williams Chair in Law at University of Richmond. He would like to thank Margaret Sanner for valuable suggestions, Jane Baber and Emily Benedict for exceptional research, the University of Richmond Law Library Staff for excellent research, Leslee Stone for excellent processing as well as Russell Williams and the Hunton Andrews Kurth Summer Endowment Research Fund for generous, continuing support.