So far, filling the federal bench with conservative-approved judges has been relatively easy for President Donald Trump.
Now comes the hard part — working with the opposition party.
The Senate has confirmed 192 federal judges since Trump took office; most were from states with at least one Republican senator or circuit judges whose jurisdiction crosses many states. That’s important because home-state senators, regardless of their party affiliation, traditionally have been able to sign off on or block a judicial nomination through the Senate’s so-called blue slip process.
Despite blue slips not being honored recently for the circuit court level, Senate Judiciary Chairman Lindsey Graham has said he will continue honoring blue slips on the district level.
If that Senate protocol is honored, then the president will need to make selections supported by Democrats — no easy feat as the 2020 elections near. But early indications are that the system is holding together for now.
Of the 72 district judge vacancies remaining, 51 are in states with two Democratic senators. Less than 20 percent of district court judges confirmed so far have hailed from states with two Democratic senators.
The Judiciary Committee had not been advancing judicial nominees during the impeachment trial, but the day before the Feb. 5 votes acquitting the president on the two articles of impeachment, the White House announced the nomination of a new crop of judges for the Senate’s consideration.
Within minutes of the Senate votes to acquit Trump, McConnell teed up five judges for floor votes. The Senate on Tuesday voted, 52-43, to confirm Alabama District Judge Andrew Lynn Brasher to replace a retiring judge on the 11th Circuit.
Confirmation votes on the four others — district court judges from Alaska, Missouri, Illinois and New York — are expected Wednesday.
Among the states with courts that have been most hard-hit by vacancies are California, New York, New Jersey and Washington.
In the Western District of Washington state, five of the seven judges hearing cases have senior status and are eligible to retire but are still hearing cases because there’s no alternative.
“Without them, and without their willingness to stay on, we would be in deep water,” said Chief District Judge Ricardo Martinez.
The 68-year-old has been on the bench for more than 30 years. Martinez and Judge Richard Jones, 69, are the only two still on active status.
“We’re both fully eligible to take senior status, but if we do there’s nobody left,” Martinez said.
Judges in the district have an annual caseload of about 550 civil and criminal cases, according to the most recent statistics available.
Three of the Western District’s spots have been vacant for about four years. The average age of district judges in the Western District is 76, Martinez said.
New Jersey has six judicial vacancies, and nobody has been nominated to those seats.
A half-dozen judges have recently been confirmed to seats in New York, but seven remain vacant. Sixteen of California’s district courts’ 60 seats are currently vacant. Three replacement judges in January were nominated to fill some of the Golden State’s vacancies.
Success in Delaware
Though judicial nominations in states with two Democrats have been largely slow, Delaware’s Democratic Sens. Thomas R. Carper and Chris Coons were able to find success by identifying and recommending potential nominees to the White House, said Sean Coit, a Coons spokesman.
“Sens. Coons and Carper worked very closely with a Judicial Nominating Committee, made up of leaders in the legal community in Delaware, to identify potential judicial nominees, closely vet them, and recommend them for these positions,” Coit said. “The White House was receptive to that request then and selected two nominees recommended by the senators.”
Both judges were confirmed in August of 2018.
The White House did not respond to a request for comment.
Carl Tobias, a federal judiciary expert at the University of Richmond School of Law, said that regardless of the judges’ politics, one of the most important factors in selecting a judge is their ability to handle a large number of cases.
“Home-state senators have a lot of say, and whether you’re a Republican or Democrat, you want a judge who’s competent because of their heavy caseloads,” he said.
And that’s something that Martinez believes should be the guiding principle too.
“I don’t want Republican judges, I don’t want Democratic judges. I want competent judges, people that can do the job,” Martinez said. “Because that’s what this district and that’s what this area and that’s what all of our people that come here to access justice, that’s what they deserve.”
One indication that there is a willingness between the White House and Democrats to work together is a recent release from Illinois Sens. Richard J. Durbin and Tammy Duckworth that indicates the system is working.
On Feb. 5, Trump announced the nomination of three district judges to sit on the bench in Illinois, earning praise from the two Democrats.
“All three nominees were carefully reviewed by nonpartisan screening committees we established to evaluate potential candidates, and we expect these nominees to be diligent, thoughtful, and principled District Court Judges,” the joint statement said. “We look forward to guiding their nominations through the Senate.”