The Struggle Over the Federal Judiciary

Donald Trump is back in office and picking up where his first term left off. Let’s look at where things stood in appointing federal judges at the end of his first term and where his second might go.

First, the process. The Constitution gives the president the power to nominate and, with the Senate’s consent, to appoint federal judges. Article III provides that the Supreme Court and and “such inferior Courts as the Congress may from time to time ordain and establish” exercise the “judicial power of the United States.”  Judges on these Article III courts serve “during good Behaviour” rather than for a specific term. The Framers included this critical protection for judicial independence in response to King George’s practice of manipulating the courts by dismissing judges he did not favor.

Four Article III courts exist today: there are nine justices on the Supreme Court, the U.S. Court of Appeals is divided into twelve circuits with 179 total judges, the U.S. District Court is divided into ninety-four judicial districts with 663 total judges, and there are nine judges on the U.S. Court of International Trade.

Congress last expanded the lower courts in 2002, the longest stretch without new positions in American history. In July 2024, the Senate unanimously passed legislation to create new U.S. District Court seats based on recommendations by the Judicial Conference, the judiciary’s policymaking body. President Joe Biden vetoed the bill after House passage in December because it would have given Trump twenty-five additional judicial positions to fill.

Now, the substance. The judiciary is one of three separated federal branches with limited and defined powers. America’s Founders understood judicial power to mean interpreting and applying written law to settle legal disputes. They said the judiciary would be the “weakest” branch because interpreting the Constitution or statutes requires determining what the lawmaker meant, not what judges would have meant, by their chosen words.

Consensus about the judiciary’s limited role meant that, for more than 150 years, the judicial appointment process operated smoothly; the few confirmation conflicts were focused on individual controversial nominees. That consensus, however, has been fracturing since the 1930s. Presidents have often appointed judges who attempt to make, rather than interpret, the law by twisting the Constitution’s meaning. Conflict over whether to keep or abandon the Founders’ view of the judiciary’s proper role has made the appointment process increasingly divisive and confrontational.

Trump started his first term by pledging to appoint judges who were consistent with the Founders’ design. They would be “originalists,” interpreting the Constitution based on its original public meaning, which is the only meaning that matters. As Thomas Jefferson warned, any other approach would make the Constitution “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” Originalism is another name for impartiality, that is, removing as much of the judge’s opinions, preferences, or politics as possible when deciding cases.

Trump started his first term with 106 vacancies on Article III courts to fill, the result of Republicans confirming only twenty-two judges during President Barack Obama’s final two years. As a percentage of the judiciary, that was the lowest confirmation rate in history. Democrats, however, radically changed several longstanding confirmation process norms during Trump’s term to make confirming his judges as cumbersome and time-consuming as possible.

In addition, they made automatic opposition to judicial nominations a standard practice. For more than a century before 2017, Senators of one party voted against an average of two percent of the other party’s judicial nominations. During Trump’s first term, Democrats multiplied that more than twenty-fold, opposing his nominations more to fight him than to reflect any genuine controversy over the nominees themselves.

Nonetheless, Trump appointed 234 judges to Article III courts during his first term: 174 to the U.S. District Court, fifty-four to the U.S. Courts of Appeals, and three each to the Court of International Trade and the Supreme Court. His appeals court total was only one fewer than Obama appointed in two full terms. As a result, Republican presidents appointed eighty-nine appeals court judges in active service today, and Democrats appointed eighty-eight. Together, Trump’s judges are more consistent with the Founders’ design for the judiciary than any president in history.

Biden took the judiciary in a very different direction. He emphasized nominees’ race, gender, and sexual orientation in order, he said, to make the judiciary “look like America.” This approach fostered an ideological, rather than an impartial, view of the judiciary’s role, suggesting that judges’ decisions, driven by their personal views and characteristics, should promote certain political interests. Democrats did not have the votes to defeat any of Trump’s judicial nominees, but they were determined that Biden would beat Trump’s confirmation total and so he did—by one.

While Republicans kept judicial vacancies open ahead of Trump’s first inauguration, Democrats closed as many as they could this time around. As a result, Trump took office the second time with just forty judicial positions vacant. At less than five percent of the judiciary, this vacancy rate is low by historical standards. That said, since 1980, an average of nearly fifty Article III judges per year leave their appointed position, three-fourths by taking “senior status,” which means they continue to serve but with a reduced caseload and their active position is then open for a new appointment.

Looking ahead, expect Trump to take the same approach to judicial appointments that he did in his first term. One advantage of recently being in office is that the transition to a new judicial appointment team can be smooth and efficient. In his first term, Trump started making nominations to lower Article III courts on March 21, 2017, earlier than any president since Richard Nixon, and may again get the process off to an early start. In addition, Trump’s many first term lower court appointees have served for several years and constitute a talented pool of principled jurists for him to elevate to higher judicial positions.

Sen. Charles Grassley (R-Iowa) will chair the Judiciary Committee in the 119th Congress, as he did during Trump’s first two years in office. Having served on the committee since he was first elected in 1980, Grassley knows better than anyone how to efficiently process Trump’s judicial nominees so the full Senate can vote on confirmation. Because Republicans gained more Senate seats than expected in the 2024 election, the Judiciary Committee will have twelve Republicans and ten Democrats rather than the last two years eleven-ten Democrat majority.

Expect Democrats to use the same tactics they pioneered during Trump’s first term to resist his new judicial nominees, even if they cannot defeat them. Democrats will, for example, demand separate votes to end debate, also known as invoking cloture, on every nominee before the Senate can vote on confirmation. Traditionally, these cloture votes were few and far between; the Senate took a cloture vote on only eight, or 4.6 percent, of Obama’s 173 first-term confirmed nominees. Democrats drove that to 187, or eighty percent, of Trump’s first-term appointees.

Also, look for Democrats to use a longstanding Senate tradition to attempt to undermine Trump’s judicial appointments further. For more than a century, Judiciary Committee chairmen have sought the Senators’ views from the state where a judicial nominee would serve. Opposition would effectively veto a district court nominee and be at least an obstacle to appeals court nominees. This tradition is supposed to encourage the White House to consult with those home-state Senators before making nominations. But Senators can also manipulate this tradition by refusing to cooperate in identifying acceptable candidates or urging their party colleagues to oppose particular nominees.

Democrats did this during Trump’s first term. Despite White House consultation, Democrats’ intransigence gave Trump a freer hand in choosing originalist nominees. But it also provoked unnecessary conflicts and delays in filling vacancies. Democrats, who complained that Republicans misused this tradition during Biden’s term, will no doubt rediscover it as an obstructive tool.

Our liberty happens by design, not by chance. This includes a judiciary that follows rather than controls the law and judges who stick to their designed role. In his first term, President Trump strengthened our liberty by appointing the kind of judges America needs. By the end of his second term, he will have had a larger and more positive impact on the judiciary than any president since George Washington. 

Thomas Jipping is a Senior Legal Fellow for the Edwin Meese III Center for Legal and Judicial Studies.