Republicans had mulled confirming some judges if Hillary Clinton had won, GOP sources said before the election, but since Donald Trump prevailed Republicans believed there was little reason to do any judicial confirmations in the lame duck. | Getty Trump set to reshape judiciary after GOP blockade The Senate left town with 99 judicial vacancies, as well as the current Supreme Court opening.

Mitch McConnell’s refusal to confirm many of President Barack Obama’s judicial nominees has set the table for Donald Trump to dramatically reshape the judiciary over the next four years, as the Republican Senate set a modern record for the fewest confirmations of lifetime judicial appointees.

The Senate GOP confirmed just 20 lifetime judicial appointments to district and appeals courts in its two years in the majority, the lowest number by far in the past 28 years, according to a Congressional Research Service report obtained by POLITICO. That means that President-elect Trump will have major sway over the courts next year, starting with the Supreme Court and going all the way down to the district level.


The Senate left town last week with 99 judicial vacancies covering district and appeals courts, as well as the current Supreme Court opening. There are 52 Obama nominations to those courts pending, with Supreme Court nominee Merrick Garland the most prominent nominee still waiting for action.

Garland never even received a hearing as Majority Leader McConnell (R-Ky.) gambled on a strategy to block any Supreme Court confirmation until the next president was sworn in. That gambit will now pay off handsomely for conservatives looking to reshape the judiciary. Most, if not all of Obama's nominations, will be wiped away next year by Trump and Senate Republicans.

There are also 38 judicial emergencies, according to the federal judiciary. Republicans had mulled confirming some judges if Hillary Clinton had won, GOP sources said before the election, but since Trump prevailed Republicans believed there was little reason to do any judicial confirmations in the lame duck. The Senate last voted on a judge on July 6, when Brian Martinotti was confirmed to a New Jersey district court.

The CRS data stretches back to 1987, and there is no modern equivalent to the slow-pace of judicial confirmations over the past two years. The second-fewest over that period was during the GOP-led Senate of 2005 and 2006, when just 51 of President George W. Bush’s judicial picks were confirmed.

“The numbers speak for themselves. The Republican-led Senate worked the fewest days in session since the 1950s, took the longest summer recess in modern era and confirmed the fewest judges and nominees in recent history. Those aren’t records to be proud of,” said Kristen Orthman, a spokeswoman for outgoing Senate Minority Leader Harry Reid (D-Nev.).

But Republicans argued that as majority leader, Reid goosed the numbers from 2013 to 2014, confirming 132 lifetime judges after changing the Senate rules to allow their confirmation by a majority vote. Don Stewart, a spokesman for McConnell, said the judges that Reid confirmed after losing the Senate in 2014 would have been confirmed during this Congress — thereby skewing the statistics significantly. He also said Democrats blocked some nominations that vulnerable GOP incumbents were seeking to confirm this year.

“The number of judges would have been higher this year if not for Reid playing politics, and even accounting for that, Obama had as many or more than Bush over the same time period. Hard for Dems to argue otherwise when the numbers are in their own chart,” Stewart said.

Over eight years, Obama got roughly the same number of judges confirmed as Bush. The Senate confirmed 323 district, circuit and Supreme Court judges for Obama and 322 for Bush, according to CRS. President Bill Clinton enjoyed 370 such confirmations. That’s led McConnell to claim that he treated “President Obama fairly with respect to his judicial nominations."

But Democrats said they had treated Bush far better in his last two years as president.

“Our constitutional duty of advise and consent is not about comparing one president to another. It is to ensure our Federal courts have the judges they need,” said Sen. Patrick Leahy (D-Vt.), the outgoing top Democrat on judicial matters, in a statement as Congress left town last week. “Right now, that is not the case when one of every nine judgeships across the country is vacant.”

McConnell’s Senate also included a modern nadir on executive branch nominees. The Senate confirmed just 244 executive branch nominees over the past two years, far short of the previous low, when from 1995 to 1996 the Senate confirmed 408 executive branch nominees.

But on legislation, the contrast between McConnell’s Senate and Reid’s is less clear-cut. The Senate passed 427 bills and resolutions over the past two years, more than the previous four years of Reid’s majority but fewer than the 557 pieces of legislation passed in 2007 and 2008, a roughly analogous period when Reid took the Senate during the last two years of Bush’s presidency. And though the Senate worked the fewest days this year in decades, McConnell’s Senate had many more amendment votes than in Reid’s last years as majority leader.