Trump, by the numbers, falls short of Carter on naming federal judges

If you ranked presidents’ impact on the federal judiciary in one four-year term over the past 60 years based on data, the winner might surprise you: Jimmy Carter.

The current officeholder, President Donald Trump, has made a significant number of judicial appointments in his first term, but overall it isn’t record-setting or "historic" as he says.

In fact, studies show Trump ranks smack in the middle of the last nine presidential administrations on overall federal judicial appointments.

Helped by a new law that expanded the courts during his term, Carter "changed the face of the judiciary" by significantly increasing the number of women and minority judges, experts say.

The Democrat appointed more judges and filled a higher percentage of the judiciary in one four-year period than his recent predecessors and every successor, according to data compiled by the Brookings Institution and other researchers.

A review of Trump’s record on judges shows he’s made some key nominations but has focused on one area. It also shows he’s been more likely to nominate white judges than his predecessors; and he’s appointed more female judges than his Republican predecessors but fewer than Democratic presidents.

Beyond two U.S. Supreme Court appointments, Trump and the Republican-led Senate have focused on the 13 regional appeals courts — venues which are the final arbiters of many lawsuits. There, they have appointed 53 judges, good for 30% of the appellate judgeships — compared with 40% for Carter and 36% for President Richard M. Nixon.

But Trump and the Senate have stalled on the 91 district courts spread around the nation, where most of the day-to-day casework gets done. Here, he’s appointed 22% of the judgeships.

His pace on district courts drops Trump to the middle of the pack — fifth out of nine — of recent administrations as ranked by percentage of federal judicial positions filled in one term.

"He has managed to change the composition of the Court of Appeals, but not massively. He’s not paid attention to district courts where most of the court business goes on," said Russell Wheeler, a visiting fellow at Brookings who has tracked every Trump judicial nominee.

"To the ideologues, the courts of appeal are really important in the view that they make law for the entire circuit. But if you’re a small-business owner in northern New York, your focus is on the district courts," Wheeler said.

Importantly, Trump has filled all the federal Court of Appeals vacancies that he inherited, which means even if Democrat Joe Biden wins the presidency in November, he won’t have any positions to fill in one of the system’s most important venues, said Carl Tobias, a University of Richmond law professor who studies federal judicial selections.

A big reason why Trump had so many opportunities is that Senate Majority Leader Mitch McConnell (R-Ky.) shut down the judicial confirmation process to a trickle during President Barack Obama’s final years in office. Trump inherited more than 100 vacancies — the largest number for an incoming president since 1993.

Trump has appointed slightly younger appellate judges than his predecessors: the median age is 48.2 (at the beginning of 2020) compared with the low- to mid-50s for previous presidents, Brookings reported. Anecdotally, his nominees appear to be very conservative — winning him points with conservative and evangelical groups that Trump is courting for reelection.

But on the regional circuit benches, Trump primarily has strengthened Republican majorities rather than radically overhauled them. Three of 13 circuits have flipped to a slight majority of Republican appointees.

"Two-thirds of those are new, young, very conservative appellate nominees replacing Republican appointees. But it’s not as if they are replacing moderate or even liberal Democrats," Tobias said. "So it’s not as dramatic as people would say."

Most of the cases that reach the appellate court are "slam dunks" — routine, noncontroversial cases that are disposed of without fanfare, Wheeler said. The number of "precedential and consequential" matters is very small — but those can be the final word on an important case or set the stage for a Supreme Court argument.

Further, the Court of Appeals is a pipeline to the Supreme Court — eight of the nine current high court judges served as appeals judges first.

Demographically, "Trump has been more likely than other recent presidents to appoint judges who are white," the Pew Research Center found. About 85% of his nominees are white, compared with 64% for Obama, 82% for George W. Bush and 72% for Bill Clinton.

Pew said Trump has appointed more female judges (25%) than his recent Republican predecessors, but much fewer than Democrats.

As president, Carter appointed 248 judges, meaning that, by the time he left office in 1981, 37% of all federal jurists were his appointees. The total number of positions has grown dramatically in the decades since, so even if someone comes close to him in raw numbers, it will be tough to match his percentage. Or his cultural impact, experts said.

"Carter had a very substantial impact on the judiciary," Alicia Bannon of the New York University-based Brennan Center for Justice. "He was the first president to make diversity a priority."

"Before Carter, a federal judge who wasn’t a white male was rare," Wheeler concurred.

Trump, with the Senate’s help, moved rapidly to fill certain types of vacancies, but not all. He’s said this made a "historic number of federal judges," but the numbers don’t bear that out.

"Trump always oversells, so you have to take it with a grain of salt," Tobias said. "He has done what he said he’d do in the Supreme Court and appellate courts. But he can’t claim much of anything at the district level."