Senate Republicans on Wednesday confirmed the 36th circuit court judge under President Trump — a rapid clip of confirmations that may slow in the coming months simply because the GOP will have filled all the existing vacancies on the powerful federal appeals courts.
The confirmation of Neomi Rao to the U.S. Court of Appeals for the District of Columbia Circuit, on a 53-46 vote, as well as Paul Matey earlier this week to the Philadelphia-based 3rd Circuit, now means one out of every five appeals court judge will have been nominated by Trump.
Now, just nine vacancies remain in the circuit courts, which handles the vast majority of cases that never reach the Supreme Court, and Trump has nominated candidates for six of them. Senate Majority Leader Mitch McConnell (R-Ky.) could muscle through confirmations by midyear, leaving few openings if a Democrat wins the White House in 2020.
“This nominee is yet another of the president’s excellent choices to serve as a federal judge,” McConnell said of Rao on Wednesday. He said during her confirmation hearing that she “demonstrated a commitment to maintaining the public trust and upholding the rule of law.”
While more seats could open up as judges retire, some tapped by Democratic presidents may choose not to do so as long as Trump remains in office and can nominate conservatives as their successors.
The scenario is a dramatic turnaround from the situation that Trump inherited in January 2017, when he came into office with 17 circuit court vacancies as well as an open Supreme Court seat that McConnell had kept vacant for more than a year by refusing to allow a vote on President Obama’s nominee, Merrick Garland.
In the two years since, McConnell, the Senate Judiciary Committee and the White House have worked expeditiously to fill those vacancies while dismissing the loud protests of Democrats who say they’ve been cut out of the traditional consultation process between the White House and senators who represent a state that has a court vacancy.
Matey, a former deputy chief counsel to former New Jersey Gov. Chris Christie, was confirmed 54-45 earlier this week despite objections from both of his home-state senators, Democrats Robert Menendez and Cory Booker of New Jersey. They said the White House did not consult with them on the nominee, and they declined to return Matey’s “blue slip,” which for decades has served as a permission slip of sorts for a judicial nominee to proceed, and which if withheld would essentially block a confirmation vote.
Infuriated over being out of the process, some Democratic senators are vowing payback if they take back control of the Senate next year by not automatically deferring to Republican home-state senators on judicial candidates.
“I say, you can’t put Humpty Dumpty back together again,” said Sen. Mazie Hirono (D-Hawaii), a vocal critic of Trump’s judicial nominees. Of the thought that Democrats would impose limits that Republicans “have absolutely no intention” of imposing on themselves, “I think that train has left the station.”
Now, a majority of the judges appointed to the 3rd Circuit will have been nominated by Republican presidents. There is one current vacancy on the Philadelphia-based court for which Trump hasn’t chosen a nominee.
Rao, confirmed to replace now-Justice Brett M. Kavanaugh on the District of Columbia court, ran into some confirmation struggles of her own, but among Republicans.
Sen. Joni Ernst (R-Iowa), who disclosed earlier this year that she had been sexually assaulted in college, raised concerns about columns Rao wrote about date rape while an undergraduate student at Yale University. The nominee apologized for her college writings in a letter to the Judiciary Committee.
Then, Sen. Josh Hawley (R-Mo.), a conservative freshman who opposes Roe vs. Wade, the 1973 Supreme Court ruling legalizing abortion, publicly questioned how Rao would rule on cases involving abortion before ultimately voting to confirm her.
Rao clerked for Justice Clarence Thomas, now one of her chief supporters, who praise her legal acumen and track record at the influential Office of Information and Regulatory Affairs, where she has quietly led the administration’s efforts to significantly scale back federal regulations.
Thomas had also spoken privately to GOP senators including Hawley and Sen. Tim Scott (R-S.C.) to boost Rao and to assure Republicans of her conservative legal philosophy.
There is little that McConnell prioritizes more in the Senate than confirming judges. In the first two years of Trump’s presidency, the GOP-led Senate successfully installed two justices to the Supreme Court, as well as 30 circuit court judges and 53 judges to the lower-level district courts.
So far this year, the Senate has confirmed a half-dozen circuit court judges. And of the six remaining circuit judges who have been nominated by Trump, three have cleared the Senate Judiciary Committee and are awaiting a confirmation vote in the full Senate.
The panel also held hearings for two nominees to California-based seats on the 9th Circuit Court earlier Wednesday — Daniel Collins and Kenneth Lee. Both are opposed by the state’s two Democratic senators, Dianne Feinstein and Kamala Harris, but are likely to be confirmed anyway.
Senate Republicans now plan to quickly pivot to filling the 129 vacancies in the lower-level district courts. Those confirmation fights have generally drawn less controversy than those at the appellate level, but the GOP-led Senate is preparing to take unilateral action to change the chamber’s rules to allow for speedier confirmation of district judges and other non-Cabinet level presidential nominees.
The planned change, which the GOP conference has been preparing for since a party retreat in January, would limit debate on what could be hundreds of Trump nominees to just two hours once senators invoke cloture — a vote that officially cuts off unlimited debate on a nomination. Currently, the debate can last as long as 30 hours on the Senate floor, and Democrats dragging out that time have increasingly irritated Senate Republicans and an administration that still has a sea of posts to fill.
At a party lunch on Tuesday, McConnell told GOP senators he has locked down the 51 Republican votes necessary to muscle through the rules change without any support from Democrats, according to an official with knowledge of the majority leader’s announcement who requested anonymity to discuss the private remarks.