The draft for the federal judiciary begins on Inauguration Day. After taking the oath of office, President Trump will get to work rounding out the judicial roster by filling more than a hundred vacancies on benches around the country.
But don’t think that Republican obstruction created that opportunity or believe that Mitch McConnell played a dirty trick on Obama’s nominees. For most of his eight years, the outgoing executive enjoyed a free hand to fundamentally reshape the judicial branch in his image.
On the campaign trail, Obama promised to fundamentally transform the nation. And the Chicago Law School professor delivered, successfully appointing 268 federal district court judges and 55 circuit court judges during his tenure. And not only did Obama break Bush’s confirmation record, he stacked nine of the benches on the appeals circuit.
“That’s a legacy with a capital L,” Texas Supreme Court Justice Don Willet told me last September. “The Supreme Court grabs the spotlight but it hears fewer than 100 cases a year, while the 13 federal courts of appeal handle about 35,000.”
Each of those lower court judges has been kept busy fielding critical cases on issues such as abortion, gun rights and voting requirements. And with life tenure, they’ll remain in their chambers regardless of who takes up residence in the Oval Office.
Even as Obama prepares to enter retirement with one of the best confirmation records in presidential history, liberals complain that Republicans kept him from doing more. Calling it “ironic justice,” Slate credits GOP obstruction for setting up Trump to “completely overhaul the federal judiciary.” But that opposition seems noticeably absent from the historical record.
In and out of the minority, Republicans have shown remarkable deference to Obama’s picks. Democrats were able to push through hundreds of nominations when they enjoyed a supermajority in the Senate. Before Democrats made confirmation even easier by changing the rules, Senate Republicans approved 99 percent of Obama’s selections.
During Obama’s first six years in office, Republicans balked at only three of his lower court nominees. Out of 210 judicial job candidates, the Senate gave the green light to 207 of them.
And confirmations only slowed when Republicans took control of the upper chamber. They never stopped. Even during a presidential election year, and to the chagrin of outside conservative organizations, the Senate continued to confirm Obama’s picks. In fact, Republicans approved 11 nominees in 2016, the exact same number as Democrats had in 2008, when George W. Bush was president.
Ultimately, liberal complaints about obstruction seem misplaced. Harry Reid’s meddling with Senate rules will do more to influence the makeup of the judiciary than Republican’s symbolic opposition to Obama’s nominees. By invoking the nuclear option, Reid vaporized the 60-vote threshold needed for confirmation. As a result, Trump’s nominees will require only a simple majority.
Of course, Trump will be will poised to make judicial picks early. But even after Democrats made confirmation easier, he still has a long way to go before he can match the 329 confirmations Obama racked up during his tenure.
Philip Wegmann is a commentary writer for the Washington Examiner.
