Judges

Trump's Actual Record on Judges

A look at the numbers shows that both the President and his critics get it wrong.

|The Volokh Conspiracy |

In his recently disclosed interviews with Bob Woodward, President Trump bragged about his record appointing judges to the federal bench. The Washington Post reports:

In a mid-December interview with Woodward, Trump boasted that he and McConnell "have broken every record" on judges, saying the issue is the majority leader's top priority. . . .

In January, the president bragged that he had installed 187 judges to the federal bench — making 1 in 4 circuit court judges a Trump appointee — and two to the Supreme Court.

"The only one that has a better percentage is George Washington, because he appointed 100 percent," Trump told Woodward, a Pulitzer Prize-winning journalist and Post associate editor. "But my percentage is, you know, like, ridiculous."

President Trump has certainly been successful at appointing a great many jurists to the federal bench—214 total as of last week. But President Trump is totally wrong when he claims that he's appointed a significantly greater percentage of sitting federal judges than did his predecessors.

Russell Wheeler at the Brookings Institution has crunched the numbers, and he finds that (as of Sept. 8), Trump had appointed a grant total of 203 judges, representing 23 percent of federal judges in active service. That's a significant proportion of federal bench, but it's a smaller percentage of sitting federal judges than had been appointed by Presidents Carter (37%), Nixon (36%), and Clinton (24%) at an equivalent point in their first terms. (The combination of Presidents Kennedy and Johnson had also appointed a greater percentage of the federal bench by Sept. 8, 1964.) George W. Bush had also appointed 23 percent of the federal bench by Sept. 8 of 2004 as well.

Of course there are more seats on the federal bench than there were in the 1970s, so does that make a difference? A little, as Trump has appointed more judges than Nixon (187) or Bush (200) had, but Trump's 203 appointments by Sept. 8 matches the number of Clinton, and is still well below Carter's total of 248.

While Trump's record is not quite what he claims, there is no question his appointments have shaped the federal bench. When Trump took office, only 44 percent of federal circuit court judges had been appointed by Republican Presidents. By September 8, the proportion appointed by Republicans had climbed to 55 percent. That is certainly a significant change, driven by the fact that 30 percent of sitting federal circuit judges were appointed by President Trump. Yet the proportion of federal circuit judges appointed by a Republican President remains below what it was in 2008 (56%), 1996 (59%), and 1992 (66%). To reach these heights, Trump would certainly need a second term.

What about the quality and caliber of these nominees? Here it is worth repeating what I posted last December on the subject:

Contrary to common characterizations in the press and punditocracy, President Trump's nominees have, on the whole, been quite impressive and highly qualified. While there are some notable exceptions, the qualifications of Trump's judicial nominees compare favorably with those of his predecessors.

Through the first two years of his Presidency, a higher percentage of judges nominated by President Trump received "Well Qualified" ratings from the American Bar Association than any recent President save for George W. Bush, according to the Congressional Research Service (see Table 11 on page 26). As of last week, President Trump's 2019 nominees have continued this trend (based on the ABA ratings through December 4 presented here). President Obama nominated a large number of highly qualified jurists, but according to the ABA, a higher percentage of Trump's appointees were "Well Qualified."

President Trump has nominated an unusual number of former academics and appellate litigators to the bench, but this has not come at the expense of their qualifications. As Adam Feldman notes on EmpiricalSCOTUS, "Trump has a higher rate of "well-qualified" confirmed first time judges than any other president on the list aside from George W. Bush."

Overall, a majority of President Trump's judicial nominees have received "Well Qualified" ratings from the ABA—80 percent of Circuit Court nominees and 62 percent of District Court nominees according to CRS. If anything, this understates the relative qualifications of Trump's judicial picks, as there are reasons to doubt the ABA's assessment of conservative nominees. Indeed, multiple peer-reviewed studies have found that the ABA evaluates Republican nominees more critically than Democratic nominees with equivalent experience. (Other research suggests there is little relationship between ABA ratings and judicial performance, as measured by reversal rates.)

I went over the numbers for Trump's nominations made during the 116th Congress, and the pattern is the same. 76 percent of Circuit nominees were rated "Well Qualified," and 74 percent of District Court nominees were rated "Well Qualified," for an overall rate of 75 percent (126 out of 169 nominations made). Only 2 percent of Trump's nominees during the 116th Congress were rated "Not Qualified."

Trump's judicial nominees are generally quite conservative in their judicial philosophies, and that may not be to everyone's liking, but there is little question the vast majority are eminently qualified to serve on the federal bench.

The bottom-line: President Trump (with a major assist from Senator McConnell) has had a significant effect on the federal judiciary, but it is not as record-breaking as he would like to claim. It has also come at a time when the Senate considers relatively little legislation, so it is not as if the Senators have much else to do other than confirm judges.

[Fixed a typo. 169 for 189. Thanks to readers for checking my math.]

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  1. I’d be curious whether some of the other Presidents had a significant number of newly created seats to fill.

    1. Carter’s numbers are significantly affected by the judicial expansion of 152 new judgeships during his term.

      This included 10 new slots on the 9th Circuit, which is what flipped the 9th from a moderately conservative circuit to Moonbat Central, pretty much overnight. And where it has remained for 40 years – although it’s getting a bit tighter now, so there’s sometimes a panel these days that has a majority that is safe in full sun.

      Amidst the chatter on packing SCOTUS, it might be as well to remember that it’s not a new thing in the lower courts.

  2. Trump brags a lot, news at 11.

    1. To put it another way, apply the axiom that when his lips are moving he’s lying and you’ll virtually never be disappointed.

      Whether that’s newsworthy any more is one question. Whether it ought to be is another. What it says about his apologists who hand wave it is another still.

      1. I distinguish between BSing and lying with intent to deceive people. Trump does an awful lot of the former, (And it really grates on my nerves.) he’s not worse when it comes to the latter than your average politician.

        One thing you can say about him is that his lies aren’t calculated. He just says whatever comes to mind without checking to see if it’s true.

        Seriously, if Biden were being fact checked in the same way Trump is, he’d rack up a comparable list of “lies”, without breaking a sweat. Even Politifact isn’t bothering to cover for him anymore.

        1. Brett Bellmore : “I distinguish between BSing and lying with intent to deceive people. Trump does an awful lot of the former, (And it really grates on my nerves.) he’s not worse when it comes to the latter than your average politician”

          I’ll agree with Brett this far : There are many kinds of lying. One type is lying to yourself, which is what Brett is doing here…..

          1. Birther Brett’s observations on truth and evidence are always a treat — if only because modern, educated Americans so rarely get a chance to observe unvarnished conservative views from the depleted human residue remaining in our can’t-keep-up backwaters after generations on the wrong end of bright flight.

            1. I disagree with many if not most conservative principles, but equating them to Trumpism is nonsense. The erstwhile conservatives who hitched their wagons to Trump abandoned shame and sold their conservative souls. George Will, David French, Jonah Goldberg, Orin Kerr, George Conway, Tom Nichols… are no less conservative today than they were when they voted for every conservative from Reagan to Romney.

              The most consistent principle behind Trumpism is anti-anti-Trumpism, not conservatism. His pandering to the repulsive far right serves the anti-anti-Trump electoral dialectic, not any conservative principle.

              1. “Conservatives” like Romney, McCain, and either Bush. Truly, conservatives all.

                1. You do realize that for every person like you who mocks Romney, McCain and the Buses as RINOs there’s an equally dogmatic leftist dismissing Obama and Biden as ideologically and morally indistinguishable from the GOP? You deserve each other.

                2. How are those guys less conservative than Trump?

                  Unless you define conservatism as “Trumpism,” which an awful lot of people seem to do, I don’t think you have an argument.

        2. if Biden were being fact checked in the same way Trump is, he’d rack up a comparable list of “lies”, without breaking a sweat.

          Very doubtful. Lies per sentence sure, but lies in total, Shirley not. These days Biden’s remarks in public – ie containing his stock of potentially auditable lies – can’t be running at more than 10% of the Orange One’s pronouncements.

          If you measure it over the whole of their political careers, then maybe.

          1. Given how often Biden calls it a day before 10A, his number would be lower.

            But he keeps citing debunked nonsense about Trump calling troops losers. Or never criticizing white supremacists. Or discussing how 200M Americans have died from COVID (he’s said this more than once, so it’s not an “error”). Or that he’s the first in his family to go to college.

            1. But he keeps citing debunked nonsense about Trump calling troops losers.

              Not debunked. Not at all. I mean, maybe Hannity or Limbaugh says it’s not true, but it is, you know it is, and it’s totally in keeping with his attitude towards the military.

              Stop spreading BS.

              1. Uh, I guess you didn’t follow up on that, huh? Anyway, The Atlantic eventually had to admit that he didn’t go to the cemetery because of weather reasons.

                1. No. Nobody denies it was raining. But lots of others managed to get to the event.

                  1. Lots of others went by train. The President’s security arrangements did not encompass that. The TDS is strong with you.

        3. Brett, he lies constantly and indiscriminately, no less about the big things than the little. The assertion that his lies of any type, consequence or subject matter are comparable to those of his competitors and/or predecessors is so divorced from the reality I and the rest of humanity experience, it’s a conversation stopper. If I’m to take you at your word that you believe it, and I do, I can no more respond to it than I could if you said the sky was plaid.

          As for notion that Trump could be telling all those lies without intending to deceive, if that’s true, which I don’t believe it is, it may be even more troubling than if it isn’t. If anything is 25th Amendment material, the depth of dissociation required to lie constantly without thinking you’re deceiving people is it.

          1. Here’s a good example of a Trump “lie” :

            https://www.snopes.com/news/2020/09/22/trump-said-biden-ok-white-power-gesture/

            Strictly it’s a Trump campaign “lie” rather than the Orange One himself.

            But obviously it’s a troll, poking fun at all the spittle flecked moonbats (aka the media) yelling “RAAAACIIISM !” accusations at people making OK hand signs, when they mean…..”OK.” Or “zero.” Along with all the other ludicrous accusations of racism constructed from vapor.

            It plays well to his base, but as a joke. His supporters do not imagine that Sleepy Joe is actually making racist hand gestures. If he can’t read 200,000 off a teleprompter and get it right, how would he remember obscure White Supremacist signals ?

            Of course Trump does tell actual porkies, like all politicians, but a good slice of what causes lefties to froth is simply trolling, and poking fun at his enemies. Pretty much everyone knows that, though some pretend not to. Which, of course, really is lying-to-deceive. The folk who are lying here are the Snopes crowd, pretending that a troll was intended as serious.

            As for actual lying, I have never, myself, worried overmuch about politicians lying. It’s pretty much an occupational requirement. I never quite understood all the Clinton-hate that the right managed in the 1990s. Yeah he lied a lot, but he was good at it, and usually did it with a twinkle.

            1. Lee,

              Among other things Trump lied, repeatedly, about Covid. These weren’t inconsequential slips of the tongue. They were deliberate misstatements with consequences.

              Now, as always, someone, maybe even you, is going to say, “Woodward can’t be trusted,” or “Mary Trump can’t be trusted,” or “John Bolton can’t be trusted,” or “Michael Cohen can’t be trusted,” or, who have I left out?

              But how long can you kid yourself?

              1. How are you today, bernard ?

                What part of :

                Of course Trump does tell actual porkies, like all politicians

                did you find particularly difficult to understand ?

                1. Can anyone play this game? What part of :

                  Jeffrey Dahmer was sometimes inconsiderate to others

                  do you find particularly difficult to understand ?

                2. What part of :

                  Jeff Bezos is pretty well off

                  do you find particularly difficult to understand ?

        4. Brett,

          Everything he says is an intent to deceive people to his advantage, or to make him look better. It is so bad that he says things that are easily, verifiably, false. In other words, he’s not just a habitual, pathological liar, he’s also a bad one.

          Further, he insists that the entire Administration operate on the same principle. Look at the insistence that testing be reduced because the numbers make him look bad. One example in thousands.

          Someone once said of a king – I’ve forgotten which one – that he was such a good liar you couldn’t even be sure the opposite of what he said was true. That’s not Trump.

        5. One thing you can say about him is that his lies aren’t calculated. He just says whatever comes to mind without checking to see if it’s true.

          Of course they are calculated. He doesn’t just say whatever comes into his head. He says anything that he thinks will make him look good.

    2. He’s a salesman, he spent his life selling development proposals, and hyperbole is to be expected. I remember being told that hyperbole does not constitute fraud in the context of business law.

      For example, everyone claims to have the “coldest” beer, and that’s not possible for a variety of reasons including the fact that beer freezes at 28°F.

      1. Not quite the same thing as trying to doctor CDC reports.

        Or claim he spent $2.5 trillion on military equipment. etc.

  3. “He has no principles. None.” “The lack of preparation. The lying. Holy sh*t.” — Maryann Trump Berry, J.

  4. This is all McConnell and McGahn and Leo…it literally has nothing to do with Trump. Even Kavanaugh is a justice because W Bush called Collins and urged her to support him.

    1. I agree. This was extremely well thought out = This is all McConnell and McGahn and Leo.

  5. The only point in the article that I’ll quibble with is the implication that the ABA rankings are worth the paper they’re printed on.

    (In fairness, Prof Alder does link in passing to an article critical of those rankings, though it’s one of the least persuasive of such articles out there.)

    1. Adler both makes the point that there’s some amount of controversy about ABA rankings and links to three separate papers on the point.

      In any case, what’s your alternative measure of a nominee’s competence? Whether they agree with you? It’s helpful to have some sort of measurement to frame the discussion.

      1. Ratio of opinions overturned on appeal? Maybe with some sort of weighting factor for how egregious the decision was?
        Citation counts, maybe reverse-weighted for age, to show how influential the judge’s writing really is?
        Opinions of other judges?

        I agree that you need some sort of measure. I just don’t think the ABA’s twisted yardstick is even vaguely adequate to the task.

  6. Trump thinks Donald Trump is awesome. Even more awesome then that guy who tried to play Donald Trump on TV.

    There is something to be said about unlimited amounts of self-esteem. Pretty much every personal improvement scheme says something like “believe in yourself” and that shit does work. Part of being awesome is thinking you are awesome. That gets you half the way there and if you project that imagine people get of the opinion that you are also awesome which is about the other 40%. This is why most successful people are boastful and arrogant. It works.

    1. Where did I get the nutty idea that He mocks proud mockers but shows favor to the humble and oppressed? And that when pride comes, then comes disgrace, but with humility comes wisdom?

    2. It’s called “all hat, no cattle” and it never works except with stupid people.

  7. Here’s more of Trump just being his adorable self, talking off the cuff, and why do you leftists take him so seriously? It must be TDS.

    I’m quoting a Tom Nichols tweet because I can’t improve on it:

    In case you’re just tuning in, the President has refused to commit to a peaceful transfer of power.

    I don’t want to hear one molecule of shit from conservatives who say “that’s just the way he talks” because if Obama had even hinted at this they’d have been psychotic with rage.

    That’s a theme Trump apologists never come to terms with. The frequency with which Trump does or says things they would (if they’re being honest with themselves) go apoplectic over if Obama did them makes a mockery of the whole “when it comes to the stuff that really matters he’s no worse than [Bush/Obama/Biden/Whoever]” argument.

  8. “Trump Claims credit”

    This should be the mantra of his Administration. But, of course, his actions were only to go along with what McConnell and the Republican Party wanted. He was able to push across these nominees because of circumstances he had nothing to do with and the idea that he even knows or understands who he is appointing is simply false.

    1. I agree, Squire. Most likely the review process ends with Barr’s thumbs up or down – Trump too disengaged and ignorant to get involved.

      1. I should have added
        “And declines responsibility”
        for anything that goes wrong.

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