The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
While most of the political oxygen in Washington is consumed by impeachment, the Senate continues to consider and confirm President Trump's judicial nominees. Last week, for instance, the Senate confirmed eight district court nominees—all but one with broad, bipartisan majorities—and this week the Senate is expected to confirm two nominees to the U.S. Court of Appeals for the Ninth Circuit (likely on a party line vote).
Continuing to confirm judges while a President is under investigation for a possible impeachment appears to be consistent with historical norms. As I explored in this post last year, the Senate has continued to consider and confirm nominees while President's were subject to impeachment investigations. Indeed, the Senate even confirmed a judge the same day President Nixon announced he would resign.
So what about the caliber and qualifications of Trump's judicial nominees? 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.)
Writing in Vox, Ian Millhiser (no fan of President Trump) acknowledges the impressive caliber of Trump's nominees (even as he decries their judicial philosophy). According to Millhiser, Trump has "filled the bench with some of the smartest, and some of the most ideologically reliable, men and women to be found in the conservative movement." As he explains:
It's tempting to assume that Trump's judicial appointees share the goonish incompetence of the man who placed them on the bench, but this assumption could not be more wrong. His picks include leading academics, Supreme Court litigators, and already prominent judges who now enjoy even more power within the judiciary.
Indeed, "based solely on objective legal credentials, the average Trump appointee has a far more impressive résumé than any past president's nominees."
While most of Trump's nominees are indisputably qualified for the federal bench, there are some notable exceptions. Nine of those nominated by President Trump have been rated "Not Qualified" by the ABA and (if I have my numbers right), six of them have been confirmed (and a seventh, Lawrence Van Dyke, is likely to be confirmed this week).
By comparison, none of President Obama's judicial nominees received "Not Qualified" ratings from the ABA. Some of this may be explained by ideological bias. In Van Dyke's case, for instance, there's ample evidence the ABA "botched" its evaluation, and failed to follow its own procedures, perhaps due to distaste for the nominee's embrace of social conservative causes.
Another factor is that under President Obama, the White House submitted names to the ABA prior to announcing nominations, creating the opportunity to withhold a nomination when the ABA disapproved—an opportunity that was taken in multiple instances. Under Obama, most such shelved nominations involved potential nominees pushed by home-state Senators or political insiders. Much the same can be said of those Trump nominees who received poor ABA ratings and were not eventually confirmed.
Whatever one makes of the handful of NQ ratings from the ABA, the overall record remains the same. As of yesterday, the President had nominated and the Senate had confirmed over 170 judges to Article III courts, including 49 to the U.S. Circuit Courts of Appeals and 120 to U.S. District Courts. Whatever his other faults (and there are legion), the President has appointed a large number of highly qualified individuals to the federal bench.