McConnell-Grassley judicial confirmation push to continue in new Senate session

The politicization of the judicial appointment process was on full display last week, as Republicans coped publicly with the loss of their majority in the U.S. House of Representatives by pointing to their wins in the U.S. Senate, which will allow them to continue confirming young conservative lawyers to the federal bench.

"The voters have ... expressed their support for confirming more great, pro-Constitution judges," President Donald Trump said during a White House news conference Wednesday. He dismissed concerns about his party's losses in the lower house during Tuesday's midterm elections.

Final winners have not been declared in the Arizona and Florida races, results that will ultimately determine how strong Republican dominance is in the Senate, but it is clear that the GOP will remain in charge.

So far, Republican leaders have been able to confirm an unprecedented number of Trump's judicial picks. As of this week, 29 of the president's judges have earned seats on federal appeals courts, appointments that will help bolster the impact he's made through confirming two U.S. Supreme Court justices.

And that judicial record has been a powerful tool used to appease conservative interest groups and voters.

"WE GET JUDGES, THEY GET PELOSI," read a triumphant tweet posted by the National Rifle Association Wednesday night, adding that the confirmation of such bench members will likely protect the group's interpretation of the Second Amendment.

That focus on the judiciary doesn't seem likely to go away.

"The bottom line is that the conservative judicial train will keep running," Sen. Lindsey Graham, a Republican from South Carolina and member of the Judiciary Committee, predicted Tuesday evening during a Fox News appearance.

As of Monday, there exist 15 planned and current vacancies on the federal appeals courts, more than a third of which are on the 9th U.S. Circuit Court of Appeals, a fact the president appears keen on changing.

"We're slowly putting new judges on the 9th Circuit," Trump told reporters Friday, complaining that the San Francisco-based court was unfair. "You never win in the 9th Circuit."

The court has been instrumental in blocking a number of his administration's initiatives, including multiple travel bans, the decision to deny funds to "sanctuary cities" and efforts to end the Deferred Action for Childhood Arrivals program.

Trump has seen two of his picks to the 9th Circuit be confirmed, but those judges replaced bench members who traditionally voted conservatively. Filling crucial seats in California and Arizona will allow him to flip seats previously held by liberals and one libertarian.

The Judiciary Committee, the body responsible for vetting the president's nominees, appears ready to get to work. During the Senate's October recess, the committee met at Chairman Chuck Grassley's orders, despite objections from Democrats, and pushed through hearings on several nominees. On Tuesday, the committee plans to hear testimony from yet another batch of judicial picks.

Russell Wheeler, a visiting fellow at the Brookings Institution who studies the federal judiciary, noted that, while much of the heavy lifting to fill appellate seats has been done, Trump has a way to go when it comes to appointing lower court judges.

Currently, 111 district court seats remain open, according to numbers made available by the U.S. Courts' administrative office. Nominations are pending for more than 50 of those seats, but the clock is ticking.

The president's selections will expire when the Senate term ends this December, requiring renomination for the new congressional session.

"Most of the [district court] nominees had hearings, so my guess is that they'll clean up shop in the lame duck, trying to get as many confirmed as possible," Wheeler said.

If Republicans do ultimately win the Senate seats in Arizona and Florida, they will have a 53-seat Senate majority. This would allow them to worry less about losing votes from moderate senators or the one or two who express concerns about more controversial nominees.

The failed nomination of Ryan W. Bounds to an Oregon seat on the 9th Circuit is the prime example of how this new majority could change things. Sen. Tim Scott, a Republican from South Carolina, announced he would not vote to confirm the federal prosecutor to a bench seat, citing concerns about racial comments he made as a college student in a number of opinion articles.

"That's the one that got withdrawn because there were just a few senators who couldn't abide it," Wheeler recounted. "Well, if there were two more senators, [Senate Majority Leader Mitch] McConnell could have said, 'Go ahead and vote your conscience, but we don't need your approval.'"

Though Trump has been successful at filling seats, he's yet to "flip" the ideological balance of any of the 13 federal appellate courts, Reuters reported recently. The news service has compiled an extensive database of judicial appointments during the Trump presidency.

While 10 of Trump's federal appellate appointees replaced judges nominated by Democratic presidents, 19 filled seats appointed by fellow Republican presidents.

By filling three seats on the Atlanta-based 11th U.S. Circuit Court of Appeals, he brought a circuit bench with more Democratic-appointed judges to be evenly split, more or less, along ideological lines. The Reuters database does not include senior judges, many of whom still have an active caseload.

But Justin Levitt, a professor at Loyola Law School who watches the federal courts closely, said that tying ideology to a judge's appointing president isn't really an effective tool. "It's commonly done, but I don't know that it's all that informative," he said.

For example, Richard C. Tallman, a senior judge on the 9th Circuit appointed by Democratic former President Bill Clinton, is known as a reliable conservative vote on the court. Appointed at a time when a home state senator's opposition could be fatal to a nominee's confirmation, Tallman was confirmed as part of a judicial package deal, an increasingly uncommon tool in the Senate.

Though no circuits have flipped, that doesn't mean Trump's appointees aren't making an impact. Take the Cincinnati-based 6th U.S. Circuit Court of Appeals, a court already composed mostly of Republican-appointed judges. Trump has to this date filled four of the court's seats.

"I think it is not surprising that the 6th Circuit has become remarkably more conservative in that period," Levitt said.

With those results, McConnell and Grassley would like to see their already successful efforts bear even more fruit.

"I think what we can expect is more of the same," Levitt added.