So far, President Donald Trump has successfully appointed more federal appeals court judges than either Barack Obama and George W. Bush combined had appointed at the same point in their respective presidencies, according to a Pew Research Center and the Federal Judicial Center. However, Trump still trails Bush, Obama and others in the number of lower-court judges he has appointed in his presidency.
As of July 12, Trump has successfully appointed 43 judges, including Supreme Court Justice Neil Gorsuch, 22 appeals court judges and 20 district judges. Additionally dozens of other nominees are awaiting Senate confirmation, including two more appeals court judges who could be confirmed this week. Brett Kavanaugh, a federal appeals court judge who Trump has nominated for the Supreme Court, also awaits hearings in the Senate.
Trump has appointed more appeals court judges than any other recent president at the same point. Presidents dating back to Jimmy Carter had also appointed a Supreme Court justice by July 12 of their second year in office, but none had appointed nearly as many appeals court judges. These jurists sit just below the Supreme Court level. Eight of the nine current Supreme Court members were federal appeals court judges before they became justices.
At this time in their respective presidencies, Bush and Obama had each appointed nine appeals court judges, while Bill Clinton had appointed 11. George H.W. Bush and Ronald Reagan came closest to matching Trump’s total with 15 and 14, respectively, confirmed appeals court judges. Carter had appointed 10.
Several factors that determine the number of judges appointed by a president include the number of vacancies that exist and the rate at which replacements are identified and nominated. The Senate is also a factor. The Senate is constitutionally tasked with voting on judges nominated by the president. Trump currently has the benefit of a Republican Senate majority, in the same way that Obama had the advantage of a Democratic-led Senate during his first two years in office. Because the Senate now has a lower vote threshold for confirming judges than existed during the George W. Bush and Obama administration’s first two years in office.
However, Trump trails his predecessors in getting district court nominees confirmed. Federal district court judges decide civil and criminal trials, rather than appeals. Trump has appointed 20 of these judges, while Obama had appointed 27 district court judges at this stage. George W. Bush and Clinton had appointed far more than both Trump and Obama – 48 and 60, respectively. George H.W. Bush, Reagan and Carter all appointed more than 30 district court judges by July 12 of their second year (Reagan had appointed 51).
Nearly six-in-ten current federal judges were appointed by Democratic presidents. As of July 12, the current federal judiciary overall consists of 725 active judges across 94 district courts, 13 appeals courts, the Supreme Court and one additional court, the Court of International Trade. Of these judges, 58 percent were appointed by Democratic presidents and 42 percent were appointed by Republicans, according to the Judicial Center’s analysis.
Obama-era federal judges dominate
Obama appointed the largest share of currently active federal judges. Across all levels of federal courts, 44 percent of currently active federal judges were appointed by Obama, 30 percent by George W. Bush and 14 percent by Bill Clinton.
Five of the nine current Supreme Court justices (counting Justice Anthony Kennedy, whose retires on July 31) were appointed by Republicans. The appeals courts are roughly evenly populated with appellate judges appointed by Democrats (51 percent) and Republicans (49 percent). In district courts, 61 percent of active judges were appointed by Democratic presidents and just 39 percent were appointed by Republicans.
Geoge W. Bush-appointed judge bucks Trump
The significance of federal district judges was brought to the fore on July 13, when Judge Dana Sabraw denounced a statement by a senior official at the Department of Health and Human Services, who said that streamlining the reunification of illegal immigrant minors separated from their parents at the border may place those minors in danger. "Unfortunately, HHS appears to be operating in a vacuum, entirely divorced from the undisputed circumstances of the case," San Diego-based Judge Dana Sabraw. The judge -- a George W. Bush appointee -- suggested that a filing by DHS attempted to "provide cover to Defendants for their own conduct in the practice of family separation, and the lack of foresight and infrastructure necessary to remedy the harms caused by that practice." Sabraw ordered the Trump administration to provide a representative of the Department of Health and Human Services on Monday in addition to a Justice Department attorney.
In a declaration to the San Diego federal court on Friday, Deputy Assistant Secretary for Preparedness and Response Chris Meekins said, "I recognize that the likely result of implementing the Court's order through the inter-departmental reunification plan will be faster reunifications of a significant number of children with their parents. At the same time, however that process will likely result in the placing of children with adults who falsely claimed to be their parents or into potentially abusive environments. While I am fully committed to comply with this Court's order, I do not believe that the placing of children into such situations is consistent with the mission of HHS or my core values."
Meekins said HHS has suspended its efforts to verify the claims of putative parents of illegal alien children under 5 years old, and has stopped DNA testing of putative parents so as to meet a July 26 deadline imposed by the court to reunify the children with their parents. Last week, a number of putative parents were shown by DHS to have no relationship to the children claimed. Judge Sabraw said that HHS’s actions are "categorically inconsistent with the Court's oral and written rulings, which explicitly require Defendants to make parentage determinations prior to reunification, and to use DNA testing, if necessary to make those determinations."