When President Donald Trump was inaugurated on January 20, 2017, he inherited a Supreme Court nomination from President Barack Obama after the Senate refused to vote on the nomination of Merrick Garland. Three months later, the Senate confirmed Neil Gorsuch as Trump’s pick to succeed the late conservative Justice Antonin Scalia. While the tactics employed by the Republican Senate majority to block Judge Garland’s nomination were unprecedented in the field of Supreme Court nominees, they have become commonplace for lesser judicial nominations. Not only did President Trump inherit a Supreme Court pick, but he inherited an unprecedented 103 judicial vacancies, nearly double what President Obama inherited from President George W. Bush. This was the result of years of the Senate and its Judiciary Committee blocking nominations made by President Obama. While this in no way violated the law or the Constitution, this can be viewed as an attempt by the Republican Party, using the powers granted to the Senate by the Constitution, to obstruct its Democratic opponents and increase its power over the federal judiciary. These actions are reprehensible but they are part of a process of political brinksmanship that has persisted between the parties for the last few decades.
As of February 23, 2018, there was a total of 147 judicial vacancies that can be appointed by the president out of 890 total judicial positions. A majority of the vacancies date from 2013 to 2016, almost the entirety of President Obama’s second term. Republicans took control of the Senate in the 2014 midterm elections and essentially put a halt on all Obama nominees until the end of his term. This was capped with the unprecedented blocking of even hearings for Judge Garland, a position backed using the so-called Biden Rule. This rule was a position stated by Joe Biden during a speech in the Senate in 1992 that no federal judicial nominees should be taken up during an election year. This was based on the idea that a president’s term was ending and that the people should get a say in who is nominated by voting in the presidential election. But this so-called rule could also be used in the hopes that your party wins the next election and is then able to fill the seat. Regardless of this rule, senators still had the power of the filibuster which could be used to block any nominee. But in 2013, the Democratic majority in the Senate removed the filibuster for non-Supreme Court judicial and executive appointments, meaning nominees only needed 51 votes to be confirmed. This was done following the blocking of multiple Obama nominees by the Republicans, who were in the minority at the time. And in 2017, the rule change was applied to Supreme Court nominations as well. Now the minority party has essentially no power or ability to block executive nominees and a party that controls the Senate but not the presidency can just sit and wait for the next election.
The rule changes and precedents set over the last few decades have led to where we are now. The gamble by the Senate Republicans to bet a Supreme Court seat and multiple judicial vacancies on the 2016 election paid off. Trump, a Republican, was elected president and now has the ability, with a Republican majority in the Senate, to appoint people to all of the open seats. As of writing, there are 58 nominees waiting on Senate approval. This has given the Republicans the opportunity to reshape the federal judiciary in their image and it was all done legally under the US Constitution.
This issue would be less of a concern if these nominees were like most executive appointments in that they were term-limited or served at the pleasure of the president. But these judicial appointments are life-long and give the nominees the authority to make drastic changes in US legal precedent, something that Republicans and the Trump administration are all too aware of. While drastic changes in the courts for political gain have been attempted before, they have almost always been met with criticism and ridicule. In this case very little has actually been said and there is little to no public outrage. While the blocking of the Garland nomination caused outrage from Democrats, the issue was quickly lost in the furor of the 2016 election. The issue of Republicans stacking the courts has almost completely faded out from widespread reporting, especially since the appointment of Justice Gorsuch. While the nation focuses on the most recent outrageous thing Trump has tweeted, he has been blessed with the ability to drastically reshape the federal judiciary.
To review, Senate Republicans used the Constitution to block the democratically-elected president’s nominations to the federal judiciary, resulting in over a hundred vacancies. This was done with the intention of waiting out the clock in the hopes that a Republican would become president and then nominate like-minded people to the federal judiciary. And with the destruction of the judicial filibuster, the opposition in the Senate has practically no say in the matter. A system that once would have produced compromises now results in hyper-partisan selections that have the potential to be beholden to those who appointed them. This is always a fear when partisans appoint people to non-partisan positions. But it is even more deeply concerning because these judicial positions are for life and have very few available mechanisms for removal. It is both a curse and a blessing that the judicial branch of our government is so far removed from the forces of politics and the populace. Either way, President Trump, a man under investigation by the FBI, will have the ability to reshape the federal judiciary and leave a legacy far past when he has left office. Senate Republicans have obstructed our democratic norms in an attempt to create a more friendly system from the Supreme Court to the US District Courts and the Courts of Appeals.
Image: Supreme Court Justice Neil Gorsuch Sworn-in at the White House (2017). WhiteHouse.gov