President Trump has already appointed a record-breaking number of federal judges, but his judicial legacy is even bigger than that: More than half of those judges replaced Democratic appointees.
Why it matters: Some of our most contentious political debates are ultimately settled in the courts. If Trump can keep replacing liberal judges with conservatives, he’d be giving conservatives an upper hand that would last for decades.
- The Senate has confirmed 17 Trump nominees for federal district courts, most of whom replaced Democratic appointees.
- Trump has also filled 16 vacancies on federal appeals courts (the last stop before the Supreme Court). Six of those appointees replaced judges who were nominated by Democratic presidents.
- There are still 140 more vacancies in the federal district and appellate courts, and Trump has put forward nominees for about half of them.
- There could soon be 100 judicial nominees pending in the Senate, according to the Federalist Society’s Leonard Leo, an outside adviser to Trump on judicial nominations.
Key caveat: Judges’ ideologies don’t always line up with the party of the president who nominated them. In some cases, even when a seat appears to have “flipped” from one party to the other, the new judge’s ideology is actually about the same as the old judge’s.
The courts’ hostility to some of Trump’s agenda — especially the travel ban — has made Trump and the GOP "even more committed to a judicial project that insures that judges follow the law and don't make it up as they go along and basically don’t play politician," Leo said.
What to watch: The rules and institutional norms that once limited presidents’ ability to reshape the judiciary are quickly falling away, in a partisan tit-for-tat over who’s the bigger obstructionist.
- Advancing a judicial nomination in the Senate used to take 60 votes; now it only requires a simple majority.
- The confirmation process could speed up even more. Republicans have complained that Democrats are forcing them to use all of the available debate time on many nominees, and are considering a measure to shorten how much time is available.
- The White House and Senate Republicans also are increasingly willing to sidestep the “blue-slip” process, a Senate tradition under which judges weren’t approved without the approval of both senators from the relevant state.
- All of these changes show how much the process has turned into a partisan exercise. Notice how many more judges President Obama was able to appoint in 2014, after Senate Democrats eliminated the 60-vote threshold — and then how quickly he lost that ability after Republicans won the Senate in 2014.
The bottom line: Trump and Senate Majority Leader Mitch McConnell have already set a breakneck pace for judicial confirmations. If Republicans still control the Senate after this year’s midterms, no matter what else happens, that pace will continue — and the impact will be felt long after Trump's presidency ends.