The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.]