After Trump Took Office, Judicial Nominee Obstruction Skyrocketed From 3 To 75 Percent

After Trump Took Office, Judicial Nominee Obstruction Skyrocketed From 3 To 75 Percent

One year ago, a shocking headline greeted readers of these pages: “Opposition to Judicial Nominees Skyrocketed from 3 to 70 Percent After Trump Took Office.” As this new Heritage Foundation report documents, things have gotten even worse.

That headline referred to the fact that, before President Trump took office, only 3 percent of judicial nominees encountered any opposition at all — not even a single negative vote in the Senate. Recently, however, such opposition jumped to 70 percent by last year and more than 75 percent today.

That’s not all. The column noted that more than 40 percent of all Senate votes against confirmation of judicial nominations, and nearly 40 percent of all votes to filibuster them, had been cast against Trump nominees. Those totals are now 51.3 percent and 53.6 percent, respectively. And yes, that counts all votes cast by all senators on all nominations to life-tenured courts in all of American history.

We can also measure how radically the confirmation process has changed in just a few years by comparing the top Senate opponents to judicial nominations by Trump and President Barack Obama. The top-10 opponents of Trump’s nominations have voted against confirmation an average 81.3 percent of the time.

By comparison, the top-10 opponents of Obama’s nominations voted against confirmation only 9.6 percent of the time. While no Republican senator voted against more than 14 percent of Obama’s judicial nominations, no Democratic senator has voted against less than 26 percent of Trump’s.

Forty Senate Democrats, 85 percent of the caucus, have opposed a majority of Trump judges. Nothing even close to this has ever happened before, no matter which party controlled the Senate or occupied the White House.

Last year, I also observed that 10 current Senate Democrats had also served during the first term of President George W. Bush, the previous Republican president. These include the current Democratic leadership: Minority Leader Charles Schumer, Minority Whip Richard Durbin, Assistant Democratic Leader Patty Murray, and Policy and Communications Committee Chairman Debbie Stabenow.

Looking at whether they also opposed a substantial number of Bush nominations might suggest that what we see today might be just routine partisanship. It isn’t. As of a year ago, these 10 Democrats had voted against an average of 48 percent of Trump’s judicial nominations, compared to only 4 percent of Bush’s nominations.

That gap has grown even larger. At this point in the Bush administration, these Democrats’ opposition had dropped below 4 percent, but their opposition to Trump nominations is now nearly 51 percent.

It’s worth noting that Trump nominees receive higher ratings from the American Bar Association than the Bush nominees these Democrats did not oppose. This is important for three reasons. First, leading Democrats such as Schumer and Sen. Patrick Leahy have said that ABA ratings are the “gold standard” for evaluating judicial nominees.

Second, several academic studies have shown a systematic bias in ABA ratings against Republican nominees (here, here, here, and here). Third, the ABA’s rating criteria include a “nominee’s compassion … freedom from bias and commitment to equal justice under the law.”

Nothing rationally related to the judicial appointment process explains such a wholesale repudiation of norms that had prevailed for more than two centuries. The only explanation is that Democrats are using these nominees as proxies for the president who nominated them. In this new confirmation normal, nominee qualifications don’t truly matter. The institutional integrity of a co-equal branch of government doesn’t matter.

America’s founders designed the Senate’s role of “Advice and Consent” as a check on the president’s power to appoint. They thought there should be “special and strong reasons” to oppose nominees. Today’s Democratic senators have decided that this category includes just one thing: the name of Donald J. Trump.

Thomas L. Jipping, a senior legal fellow at The Heritage Foundation, is the deputy director of Heritage’s Edwin Meese III Center for Legal and Judicial Studies.
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