by on By Daniel Cotter*
President Donald Trump has had great success in appointing Article III judges to the many vacancies that he inherited when he became President in January 2017. President Trump has touted recently that he is on a record-breaking pace for the judiciary. However, a review of the data of judgeships filled by president does not confirm that assertion.
On May 1, 2019, at the National Day of Prayer Dinner, President Trump boasted:
I’m thrilled to report that, tomorrow, the Senate will confirm the 100th federal judge to the court system. Under my administration, we’re getting to a level where we’re gonna be breaking records with respect to the judiciary, which means a lot to the people in this room because you were treated very poorly. And now, with time, you’ll see what happens. And we’ll have close to 145 very shortly.
As of June 19, 2019, President Trump has appointed 2 Supreme Court justices, 41 Courts of Appeals judges, and 76 District Court judges, for a total of 119 Article III judges. In addition, currently he has 3 appellate judge nominees and 55 district court nominees pending, which would make his total (if all confirmed) 167 Article III judges in his first term.
By comparison, the numbers by the previous six administrations are:
President Years in Office SCOTUS Cts of App DC Average per Year
Carter Four (1977-1981) 0 56 203 65
Reagan Eight (1981-1989) 3 83 290 47
Bush Four (1989-1993) 2 42 148 48
Clinton Eight (1993-2001) 2 66 305 47
Bush Eight (2001-2009) 2 63 261 41
Obama Eight (2009-2017) 2 55 268 41
Trump’s current numbers, if he has no more vacancies, would be an average of approximately 42 Article III judges per year, not the lowest, but not on a much faster pace than his two immediate predecessors. Trump will have additional vacancies to fill during this first term and, if re-elected, will have numerous potential additional vacancies to fill. For example, recently Judge Carlos Bea announced he will take senior status once his replacement has been confirmed.
The one place where President Trump is correct is in the number of circuit court nominees confirmed in the first two years. Per the Congressional Research Service’s Judicial Nomination Statistics and Analysis report:
“There were 30 circuit court nominees confirmed during President Trump’s first two years in office. This is the greatest number of circuit court nominees confirmed by the Senate during the first two years of any presidency listed in Table 2.”
Judicial Nomination Statistics and Analysis Report, footnote 15, page 5.
In addition to the pace that President Trump is on in filling judicial vacancies, one other factor that would suggest that he should be filling vacancies at a faster pace is the number of Article III vacancies he inherited when compared to the last three predecessors. When President Trump took office in 2017, there were 874 authorized judgeships and 142 vacancies. By contrast, at the beginning of his predecessors’ first terms, there were the following authorized judgeships and vacancies:
President Authorized Vacancies
Clinton 846 115
Bush 862 110
Obama 874 53
While President Trump might not be correct in that he is setting records in terms of his nominees sitting on Article III courts, he will have a major long-term legacy in his judicial selections, especially on the higher courts.
* Daniel Cotter is a lawyer practicing in Chicago. He currently is Co-Chair of the ACS Chicago Lawyer Chapter. He is a frequent writer on the Supreme Court and our judiciary, including on Twitter (@scotusbios) and the author of the recently published book, “The Chief Justices” (Twelve Tables Press).