AuthorMcGahn, Donald F., II

Thank you so much for that kind introduction. (1) really appreciate the opportunity to be here today. I am going to speak generally about the judicial selection process. It is an honor to be here at William & Mary. It was the first law school in the country. (2) I drove in this morning, walked in, and came across your large statue of John Marshall, the author of Marbury v. Madison, (3) He was the great Chief Justice, the one that all nominees tend to invoke as a role model. (4) There was a rumor that Justice Ginsburg met Chief Justice Marshall, but I don't think that is true. [Laughter]

I am going to talk about the confirmation process generally. There is no better place to talk about it than here. Let me begin with some numbers and statistics, before I turn to the main thrust of my talk, to give some context as to what recent Presidents have done with respect to judicial appointments. President Trump has appointed two Supreme Court Justices, Neil Gorsuch and Brett Kavanaugh. (5) He has nominated forty-two individuals to the Courts of Appeals; twenty-nine so far have been confirmed. (6) The Senate Leader, Senator Mitch McConnell, has already said they will all be confirmed assuming he has the votes. So for comparison purposes, let's use forty-two as our number. As for District Court nominees, he has made over 109. (7) So that is over 150 judicial nominations in less than two years.

By way of comparison, President Obama appointed two Supreme Court Justices in eight years. (8) He appointed fifty-five judges to the Courts of Appeals and 262 to the District Courts--in eight years. (9) President George W. Bush also made two Supreme Court appointments, as well as sixty-three appointments to the Courts of Appeals and over 250 to the District Courts--again, in eight years. (10)

Let's pause there for a minute. President Trump has been in office for two years. He has nominated forty-two candidates to the Courts of Appeals. In eight years, President Obama appointed fifty-five and President Bush appointed sixty-three Court of Appeals judges. So you see the media coverage of the President's influence on the federal judiciary isn't just hype, these are real numbers that are going to have a lasting impact. President Clinton appointed two Supreme Court Justices, sixty-six Courts of Appeals judges, and 305 judges to District Courts--again, in eight years. (11) So we see that the numbers within prior administrations within this generation are fairly consistent. But President Trump has almost satisfied the eight-year standard in two years.

President George H.W. Bush appointed two Supreme Court Justices and forty-two judges to the Courts of Appeals in four years (as compared to the two years President Trump has nominated the same number of candidates in). (12) He also appointed 148 judges to the District Courts--less than President Trump will have nominated in about two-and-a-half years. (13) While there are still a number of vacancies without nominees to fill them, the President has preliminarily signed off on many candidates to fill these empty seats, and they are currently going through the elaborate prenomination vetting and background check process.

President Reagan, who made judges a priority and historically people look to his administration for having "moved the needle" so to speak--appointed three Supreme Court Justices, eighty-three judges to the Courts of Appeals, and 290 judges to District Courts--in eight years. (14) So in eight years, Reagan had eighty-three confirmations to Trump's forty-two nominations--in two years. President Carter made no Supreme Court appointments (15)--I can say it--thankfully. [Scattered applause] Thank you to the three Republicans in the audience who clapped. President Carter appointed fifty-six judges to the Court of Appeals and appointed 203 judges to the District Courts. (16) President Ford appointed one Supreme Court Justice, twelve judges to the Courts of Appeals, and fifty-two judges to the District Courts. (17) President Nixon appointed four Supreme Court Justices, forty-five judges to the Courts of Appeals, and 176 judges to the District Courts. (18) Looking at all this, what Trump has done in two years is comparable to what Presidents of the last fifty years have done in at least four but usually eight years. So I say this not to brag about President Trump--the vacancies aren't driven by the President--but I say this to note that the number of nominees that we've made recommendations to the President on and shepherded through the Senate in essentially eighteen months rivals what previous White Houses have done in four to eight years.

So against the background of these numbers, what do we make of the current confirmation process? Well my view is that it is in significant decline. Stephen L. Carter, a professor at Yale Law School the last I checked, wrote a book in 1995 that was aptly named The Confirmation Mess. (19) It continues to be a mess, and I think the mess has spread. It hasn't always been like this. Let's take the example of Justice Stephen Breyer. Before his appointment to the Supreme Court, he was a judge on the U.S. Court of Appeals for the First Circuit. (20) He was nominated on November 13, 1980 and confirmed on December 9, 1980, which for those of you who know when Presidential elections occur, will notice that his nomination and confirmation both happened after the 1980 presidential election where President Carter lost to Ronald Reagan. (21) And the vote was 80-10! (22) Eight Republicans voted for him for the First Circuit. (23) So it was not the hardline stuff you see today. Now some might chalk this up to the fact that then-Judge Breyer had been the counsel to the Senate Judiciary Committee once upon a time, when Ted Kennedy was the Chairman, so maybe that was why he was different. (24) But the fact remains that he received bipartisan support after an election, and democracy did not end.

In addition to his appointment of Judge Breyer to the First Circuit, President Carter made four appointments to the U.S. Court of Appeals for the District of Columbia Circuit: Patricia Wald, Abner Mikva, Harry Edwards, and Ruth Bader Ginsburg. (25) The average timeline from their nominations to confirmations was about two to three months. (26) Edwards and Ginsburg were confirmed either by voice vote or unanimous consent--it is sometimes tough to tell from the record, but there was not a roll call vote. (27) Wald had a roll call vote, 77-21. (28) A majority of Republicans supported her. (29) Mikva was a little controversial in those days and his confirmation vote was 5831, which was considered a tight vote in those days. (30) Those were the Carter appointments to the D.C. Circuit, the court some call the second most important court behind the Supreme Court. (31) Unless, of course you are on the First Circuit. Or the Second, or Third or Fourth, or really any other Circuit. Then the D.C. Circuit just does a bunch of government law. Most see it as a court of unique emphasis.

Let's compare this to President Trump's first D.C. Circuit nominee, Greg Katsas. The timing was comparable. He was nominated September 7, 2017, and finally confirmed on November 28, 2017, about three months later. (32) That isn't much to complain about, but with a Republican-controlled Senate and a Republican President, one would expect things to move quickly. But the total vote here is interesting.

His Judiciary Committee vote went on party lines, 11-9.33 The cloture vote was 52-48--cloture is a motion a Senator makes to end debate, otherwise the Senate can continue to debate, and debate, and debate ... The way to end that is to move for cloture, and that has to pass by a majority. (34) In Katsas's case, that passed 52-48. (35) And the final vote was 50-48. (36) So a D.C. Circuit judge was confirmed with only 50 votes. Compare that to what seems to be ancient history with voice votes and unanimous consents, particularly with respect to Ruth Bader Ginsburg. Maybe Katsas was an outlier? Maybe he wasn't qualified? Maybe he was not everyone's cup of tea? Could be--he went to Princeton. (37) He went to Harvard Law School and was an executive editor of the Harvard Law Review, (38) He clerked on the U.S. Supreme Court. (39) He had two Circuit Court clerkships prior to that. (40) He argued over seventy-five appeals in every one of the Courts of Appeals. (41) Or maybe it is just how D.C. Circuit judges go nowadays? Maybe something has changed since Jimmy Carter? It is one thing to talk about Stephen Breyer and the First Circuit, but maybe the D.C. Circuit is special, so people pay special attention? Is this a new trend? Let's look at the history.

Let's look at the time after President Carter, and look at President Reagan. Reagan appointed eight judges to the U.S. Court of Appeals for the D.C. Circuit: Bork, Scalia, Starr, Silberman, Buckley, Williams, Douglas Ginsburg, and Sentelle. (42) Now, if you are a Federalist Society type, these are the Hall of Fame busts that one would put in one's house if you were doing shrines to conservative jurists. They are seen as the who's who, each and every one of them are considered to be legacy picks of President Reagan. With respect to timing, the longest of these confirmations took about four months from the date of nomination, whereas half were less than two months. (43) The votes--this is interesting--six of the eight were confirmed either by voice vote or unanimous consent, meaning no roll call vote. (44) Instead, it stands for the unanimous advice and consent grant by the Senate. Judge Buckley and Judge Sentelle had roll call votes, but they weren't really close: Sentelle was 84-11, and Buckley was 87-0. (45) Here you had nominees that, at least looking back, are considered conservative stalwarts--pioneers, Hall of Fame members--and they were going through without much in the way of opposition.

What else happened in the 1980s? Lots--a number of Supreme Court...

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