While many are aware that Trump has appointed two fine Supreme Court justices, it is less well-known that Trump has made significant progress in remaking the federal appeals courts, the 13 powerful courts one level beneath the Supreme Court. Of the judges confirmed under Trump, 43 are appeals court judges — a very impressive number. In fact, this is 14 more appeals court judges than George W. Bush, 16 more than Clinton, and 22 more than Obama had confirmed at the same point in their presidencies.
Additionally, Trump has flipped the Third Circuit Court of Appeals (which covers Pennsylvania, New Jersey, Delaware, and the Virgin Islands). For those unfamiliar with the term, "flipping a circuit" means creating a majority of judges on a circuit court who were nominated by presidents from the same party. Trump is also on the cusp of flipping the Second Circuit of Appeals (which covers New York, Vermont, and Connecticut) and the Eleventh Circuit Court of Appeals (which covers Georgia, Florida, and Alabama). Trump has even made notable gains on the notoriously liberal Ninth Circuit Court of Appeals (which covers Alaska, Washington, Idaho, Montana, Oregon, California, Nevada, Arizona, Hawaii, Guam, and the Northern Mariana Islands) where there are now 16 Democrat-appointed judges and 12 Republican-appointed judges with one vacancy.
Nor are these gains just academic; Trump's appointees are making a difference. For example, Neil Gorsuch, Trump's first Supreme Court nominee, provided the key fifth vote in the Janus case, which established that all government workers have the right to work and cannot be compelled to pay union fees. This was a huge victory for conservative government employees who had previously been compelled to support liberal public employee unions. In addition, as Adam Feldman wrote on SCOTUS Blog, "The Supreme Court with Kavanaugh is distinctly different from the court with Kennedy. There is no longer a clear swing vote." As evidence of this fact, both Gorsuch and Kavanaugh joined the other conservatives on the Court in a 5-4 decision allowing construction of the border wall to continue.
To try to stop this progress, Senate Democrats continue to obstruct judicial confirmations. They are simply terrified of the thought that they might not be able to use the courts to impose their will on the people as they have done so many times in the past. This fear has even led some Democrats to openly support packing the Supreme Court.
In spite of the great work Senate Republicans have done so far, much work remains to be done. Overall, there is still a small majority of Democrat-appointed judges among all active Article III judges. However, there are 120 current and future judicial vacancies, and nearly 50 judicial nominees are awaiting hearings or confirmation votes. By simply filling current vacancies, Republicans can create a majority of Republican-appointed judges. At the current pace, the Senate would confirm about 70 more judges by the end of Trump's first term.
Many people voted for President Trump and Senate Republicans because they wanted to see conservatives appointed to the federal bench; and Trump and Senate Republicans have delivered for those voters. Long after the President leaves office, his appointees to the courts should still be working to protect our rights from the leftists who would them away. As Democrats continue to play games with impeachment and obstruct judicial confirmations — and Democrat-appointed judges try to stop Trump's policies — Senate Republicans should respond by accelerating their efforts to confirm Trump's judicial nominees.
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Richard McCarty is the Director of Research at Americans for Limited Government Foundation.
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