If there’s one thing Senate Majority Leader Mitch McConnell has been single-mindedly focused on this year, it’s confirming as many judges as possible.
During the final years of the Obama administration, McConnell’s mission was to slow-walk or straight-up block the president’s judicial nominees, including, notably, Supreme Court pick Merrick Garland.
In the era of Trump, McConnell is committed to doing the exact opposite — with the goal of jamming through judicial nominees at a breakneck pace. This past year, a Republican-dominated upper chamber approved 66 judicial nominees, including Supreme Court Justice Brett Kavanaugh. As a point of comparison, during the second year of Obama’s term, the Democrat-controlled Senate confirmed 49.
Thanks to McConnell’s obstructionist strategy during the Obama years, Trump entered office with plenty of judicial vacancies, and he and McConnell seem determined as ever to keep on filling them.
What’s more, Trump has selected nominees who are overwhelmingly white men, many in their late 30s or early 40s — marking a significant departure from Obama’s picks who included a higher proportion of women and people of color. It’s a group that’s notable for a couple of other reasons as well. A small handful have been deemed “not qualified” by the American Bar Association, and a number greater than zero has engaged with an organization rated as a hate group by the Southern Poverty Law Center.
Activists say it’s a veritable onslaught on the judiciary that could have an impact for decades.
“Long after Donald Trump leaves the seat, his fingerprints will still be on our justice system — two, three, four decades from now,” says Daniel Goldberg, the legal director at the Alliance for Justice, a left-leaning advocacy group focused on the courts. A McConnell spokesperson, meanwhile, said it’s customary for critics to take issue with the opposing party’s nominees.
Here are nine stats to know about all the judicial nominees who have been confirmed by the Senate in 2018.
The Senate has confirmed 66 total judicial nominees
Senate Majority Leader McConnell has not been shy about his plans to make judicial nominees his main focus, especially since it’s one rare area where he’s been able to unite the Republican caucus’s very narrow Senate majority.
“You know what my top priority is? It’s the judiciary,” he said during a press conference after the midterms. “We intend to keep confirming as many as we possibly can as long as we can do it.”
And he’s definitely kept up his end of the bargain.
According to a Politico count, as of mid-October, the Senate had confirmed 84 judges so far in this administration — compared to 41 judges who had been confirmed at that point in Obama’s administration.
This year alone, the Senate has barreled ahead with 66 confirmed nominees, and even considered some who were ultimately withdrawn for issues such as past racist writings. As they’ve done so, they’ve left a swath of upended Senate norms in their wake.
Republicans were so determined to keep up the pace on judicial nominees that they held confirmation hearings during October recess, when many members were out of town, for example.
The judges who have been confirmed will also likely serve for decades and play a pivotal role in decisions weighing everything from the preservation of DACA protections to the legality of voter suppression tactics.
Already, Seventh Circuit Judge Amy Coney Barrett has been part of a panel that halted an appeal by the Equal Employment Opportunity Commission to address racially discriminatory transfer practices by a Chicago company, and Fifth Circuit Judge James Ho has dissented in a decision that implemented stricter campaign finance rules, USA Today reports.
“Trump’s judges have ruled in favor of police, prison guards and a male student seeking the right to face his accuser in a sexual assault case, as well as against a naturalized citizen fighting his loss of citizenship,” USA Today’s Richard Wolf writes. Not all of them have acted in line with the president’s political agenda, however; at least one judge has helped preserve asylum rights for a Mexican immigrant.
Since Republicans are only set to widen their majority in 2019, this fixation on judicial nominees isn’t expected to fade anytime soon.
18 confirmed nominees are circuit court judges
There are 13 circuit courts, which are the highest courts in the country after the Supreme Court — and they’re the ones that Trump and McConnell have been filling especially rapidly.
According to a Washington Post analysis, Trump’s administration has seen more circuit court judge confirmations, as of September, than any of the past five presidents.
This is notable because circuit courts are sometimes the last stop before the Supreme Court — and if the Supreme Court declines to hear a case, circuit court rulings can be final.
“The Supreme Court gets the bulk of the attention, but the circuit courts decide the bulk of the cases,” University of Pittsburgh law professor Arthur Hellman told the Post. “Because the Supreme Court these days is taking so few cases, the law of the circuit is, on many, many issues, the final law for the people who live in that circuit.”
Nominations for circuit courts have been increasingly contentious this administration, as Senate Judiciary Chair Chuck Grassley has moved to weaken blue slips, a tool that lawmakers in the minority previously had to signal their disagreement with judges who would be representing their regions.
48 confirmed nominees are district court judges
There are 94 district courts in the country and they are the first to hear trials on any cases taking place at a federal level.
In the past year, district courts have made decisions on a wide array of policy areas including the ability for immigrants to seek asylum and, more recently, the constitutionality of the Affordable Care Act.
District court nominees have also been at the center of two controversies over deals that were made between Democrats and Republicans on judicial nominees. In August and October, Senate Democrats agreed to confirm two sets of district court nominees, which a senior Democratic aide had said were predominantly uncontroversial.
Senate Minority Leader Chuck Schumer had agreed to the deal in order to allow red-state senators to go home and campaign, but his decision to do so provoked outrage from progressive activists, who saw the move as a sign of weakness.
76 percent of confirmed judges are men
It’s perhaps unsurprising that Trump’s picks for the judiciary have the same lack of gender diversity as the broader team he’s selected for his Cabinet and White House staff.
An overwhelming proportion of the judges who have ascended to the federal bench this year are men, with women making up just 24 percent of those who were confirmed, according to an analysis by the Alliance For Justice. Based on data compiled by NPR, women made up roughly 41 percent of those confirmed under Obama.
The lack of women joining the bench is particularly alarming as the courts continue to weigh cases on issues as varied as health care, abortion rights, and workplace discrimination that have an outsize impact on women.
92 percent of confirmed judges are white
A lack of racial diversity is also extremely evident among Trump’s picks.
Only 8 percent of Trump’s confirmed judges in 2018 are people of color, the AFJ analysis found, and a number of problematic nominees have actually been called out for systematically trying to disenfranchise and discriminate against minorities.
“In an increasingly diverse country, citizens have a right to walk into a courtroom and see judges who are deciding life-and-death issues that look like them,” says Goldberg of AFJ.
This dearth of diversity marks a sharp contrast from not only Obama but former Republican President George W. Bush, who pushed his staff to add more people of different backgrounds to the judiciary. “I want more diversity, I want more women, I want more minorities,” Bush would reportedly say when he was given nominee options, the Associated Press reports.
The median age is 49 at the time of their nomination
The median age of Trump’s judicial nominees is slightly younger than those of Obama’s, according to data compiled by NPR, meaning many will likely serve for longer on the courts since these are lifetime appointments.
“These Trump judges are young — late 30s, early 40s, by and large,” NPR’s Carrie Johnson reported in the fall. “One candidate in his mid-50s told me he was considered to be too old to even apply for the job,” she added.
Many of these judges are likely here to stay for some time — solidifying a larger conservative presence in the courts.
At least five judges have signaled opposition to the Affordable Care Act
One of the largest concerns activists have about the Trump nominees is that they are bringing political agendas to a seat on the court — which has historically been viewed as independent from politics.
There are a series of areas including abortion rights, voting rights, and health care that numerous judges have previously expressed their stance on via various rulings and opinions. At least five confirmed judges from the past year have opposed the Affordable Care Act in some capacity, the Alliance for Justice notes.
This includes, for example, Stuart Kyle Duncan, an attorney who fought the ACA’s contraceptive mandate in front of the Supreme Court and is now a judge on the Fifth Circuit.
As Kavanaugh repeatedly said in his confirmation hearing, it’s certainly possible that previous judicial decisions or cases are not reflective of how a judge will consider future ones — but many nominees’ ties to conservative groups like the Federalist Society offer a concerning indicator of how they could rule on such issues, AFJ’s Goldberg says.
Three judges have been deemed “not qualified” by the American Bar Association
A number of Trump’s judges have also been rated “not qualified” by the American Bar Association — widely viewed as a key authority on the caliber of judicial nominees by Republicans and Democrats alike.
Three judges, including Jonathan Kobes, Charles Goodwin, and Holly Lou Teeter, were given that rating this year, while six of his nominees have been labeled as such since the start of Trump’s term.
The “not qualified” rating is the lowest of the three offered up by the ABA, which also deems nominees “qualified” and “well qualified.” Much like the term suggests, this ABA rating indicates that a nominee doesn’t have the experience on past cases and writings, or fails to meet broader criteria, that would prepare him or her for a role on the bench.
According to the Leadership Conference on Civil and Human Rights, an advocacy group that’s been involved in campaigning against conservative nominees, this seems to be the highest number of judges who have been deemed “ not qualified” in the first two years of a president’s term.
A Bloomberg Law analysis found that the number of “not qualified” nominees Trump has put forth far outpaces his four predecessors, at this point in their presidencies.
One confirmed judge has engaged in an event with a hate group, and another awaiting a vote interned for one
A group of Trump judges have faced scrutiny for their views on race and gender, but at least one has engaged with an organization that’s been classified as a hate group by the Southern Poverty Law Center.
Andrew Oldham has spoken at the Blackstone Legal Fellowship, a program affiliated with the Alliance Defending Freedom, which has supported the recriminalization of homosexuality. Such ties indicate just how far from the mainstream some of these judges are, activists say.
Allison Rushing, another Trump nominee who has yet to be confirmed, had also spent a summer interning with ADF.