Democrats support Trump’s judicial nominees

A recent Politico report examining “the Senate’s record-breaking gridlock” during Donald Trump’s presidency claims that Democratic “filibusters against the president’s nominees have hit historic highs.” The report claims that the president’s judicial nominees have been especially impacted by unprecedented obstruction in the Senate. 

Majority Leader Mitch McConnell, R-Ky., has made confirming Trump’s judicial nominees his top priority. The Senate has done little else during the president’s first term.

Conventional wisdom in the capital holds that Senate Democrats have responded to McConnell’s efforts by slowing the judicial confirmation process to a crawl. The standard view, reflected in the Politico report, is that Democrats are filibustering the president’s judicial nominees across-the-board. Republicans have criticized Democrats in the past for what they describe as the “systematic obstruction” of qualified candidates for the federal bench nominated by a “duly elected president.” In contrast, Democrats claim that they are merely opposing unqualified judicial nominees whom they describe as “ideologically right-wing people.”

A closer look at the data for judicial confirmations in the 115th and 116th Congresses indicates that Democrats are not obstructing the president’s judicial nominees to the degree many presently assume. 

The Rules

Senate minorities can no longer stop an up-or-down vote to confirm a judicial nominee by filibustering him or her. In 2013 and 2017, Democrats and Republicans, respectively, broke Rule XXII of the Standing Rules of the Senate by using the nuclear option to reduce the number of votes needed to end a filibuster. The nuclear option refers to a procedural maneuver that empowers a Senate majority to ignore, circumvent, or change the rules with a simple-majority vote in direct violation of those rules. The combined effect of the two nuclear episodes was to lower the threshold for invoking cloture (i.e., to end debate) on all nominations from three-fifths of senators duly chosen and sworn (typically 60) to a majority of senators (typically 51).

Senate Republicans used the nuclear option again in 2019 to speed-up the confirmation process. They did so to get around the provision in Rule XXII that regulates debate time after the Senate has invoked cloture on a nominee. Specifically, Republicans went nuclear at the time to reduce the maximum amount of post-cloture debate time from 30 hours to just 2 hours on covered presidential nominations.

The Data

A review of the confirmation process in the 115th and 116th congresses indicates that President Trump’s judicial nominees have received more bipartisan support than the standard view assumes.

115th Congress. The Senate confirmed 79 of President Trump’s judicial nominees in 2017 and 2018. The successful nominations included 2 Supreme Court nominees, 30 Appellate Court nominees, and 47 District Court nominees.

Of the 79 successful nominees, only 8 (10 percent) were confirmed on a party-line basis. All of the president’s judicial nominations that pitted every Republican against every Democrat were nominated to serve on the Appellate Court. In contrast, the Senate confirmed 71 nominees (90 percent) with varying levels of bipartisan support.

Nineteen (24 percent) of the president’s judicial nominees received minimal bipartisan support in 2017 and 2018. Specifically, 1 to 10 Democrats supported 2 Supreme Court nominees (100 percent), 11 Appellate Court nominees (37 percent), and 6 District Court nominees (13 percent).

Trump’s judicial nominees fared slightly worse in the “moderate bipartisan support category.” In total, 5 nominees received the support of 11 to 20 Democrats. They included 3 Appellate Court nominees (10 percent) and 2 District Court nominees (4 percent). Likewise, 5 of the president’s judicial nominees (6 percent) received significant bipartisan support (21-30 Democrats). They also included 3 Appellate Court nominees (10 percent) and 2 District Court nominees (4 percent).

In contrast to the standard view, 22 of Trump’s judicial nominees (28 percent) received overwhelming bipartisan support (30-plus Democrats). They included 5 Appellate Court nominees (17 percent) and 17 District Court nominees (36 percent).

Twenty of the president’s successful judicial nominees in the 115th Congress (25 percent) were confirmed by voice vote. A voice vote does not record senators’ positions for or against a judicial nominee. Despite their alleged opposition to Trump’s “right-wing” nominees, Democrats supported confirming 20 District Court nominees (43 percent) by voice vote in 2017 and 2018.

116th Congress. The Senate has confirmed 111 of President Trump’s judicial nominees thus far in the 116th Congress (as of June 8, 2020). The successful nominations included 21 Appellate Court nominees and 90 District Court nominees.

The Senate has confirmed more judicial nominees on a party-line vote in 2019 and 2020 than it did in the preceding two years. Specifically, it confirmed 29 (26 percent) on a party-line basis. They include 13 Appellate Court nominees (62 percent) and 16 District Court nominees (18 percent).

In contrast, the Senate confirmed 82 nominees (74 percent) with varying levels of bipartisan support. One to 10 Democrats supported 21 of Trump’s judicial nominees (19 percent). Of those, 3 were nominated to serve on the Appellate Court (14 percent), and 18 were nominated to serve on the District Court (20 percent). 

As in the 115th Congress, Trump’s judicial nominees also fared slightly worse in the “moderate bipartisan support” category in the 116th Congress. Seven nominees (6 percent) received the support of between 11 and 20 Democrats. They include 1 Appellate Court nominee (5 percent) and 6 District Court nominees (7 percent).

The president’s judicial nominees fared better in the “significant bipartisan support” category. Specifically, 21-30 Democrats supported 21 (19 percent) of Trump’s judicial nominees. The nominations in this category include 3 Appellate Court nominees (14 percent) and 18 District Court nominees (20 percent).

As in the 2017 and 2018, more of Trump’s judicial nominees have received overwhelming bipartisan support in 2019 and 2020 than the standard view assumes. Specifically, 30-plus Democrats supported 26 of the president’s judicial nominees (23 percent). They include 1 Appellate Court nominee (5 percent) and 25 District Court nominees (28 percent). 

The Senate confirmed seven District Court nominees (8 percent) by voice vote in the 116th Congress.