WASHINGTON — Senate Majority Leader Mitch McConnell on Wednesday reached a significant milestone during the Trump presidency by filling the final vacancy on the U.S. Circuit Court of Appeals, an achievement that fulfills his goal of remaking the federal judiciary as more conservative for a generation but also one that is less diverse.
McConnell, who has vowed to “leave no vacancy behind,” heralded the achievement on the Senate floor Wednesday, noting that there hasn’t been a fully appointed Circuit Court in decades.
“When we depart this chamber today, there will not be a single Circuit Court vacancy anywhere in the nation for the first time in at least 40 years,” McConnell said. “Our work with the administration to renew our federal courts is not a partisan or political victory. It's a victory for the rule of law and for the Constitution itself.”
The conservative shift of the court under President Donald Trump and McConnell is not just ideological — the federal courts have also become younger, more white and more male.
Nearly 76 percent of the judicial confirmations under Trump are men compared with 58 percent during President Barack Obama’s tenure, according to data collected by the American Constitution Society.
The racial disparity has also grown under Trump as well. Eighty-five percent of his confirmations have been white compared with 64 percent under Obama. Eighteen percent of Obama’s confirmations were Black compared to 4 percent under Trump.
Chris Kang, a former deputy counsel to Obama and co-founder of the progressive judicial group Demand Justice said that Trump’s judges were reversing the racial and gender diversity that Obama’s picks brought to the courts.
“You have 200 judges that are more white than we’ve seen since Reagan, who have certainly gone backwards in terms of gender diversity as well,” he said. “It’s no longer reflective of that aspect of the country. That is an underlying area of concern going forward.”
The final vacancy on the Circuit Courts, Trump’s 53rd confirmation, was filled Wednesday when the Senate voted 52-48 to confirm Cory Wilson for the 5th Circuit. All Senate Democrats and one Republican, Sen. Susan Collins of Maine, voted against him because of his stated opposition to the Affordable Care Act. He is 49 years old.
The Senate’s previous confirmation, just last week, was of Judge Justin Walker, a 39-year-old McConnell mentee who Democrats decried as being experienced.
The large numbers of vacancies facing Trump weren't an accident. McConnell took over the Senate in January 2015 and held votes on just two Circuit Court judges during Obama's last two years in office. And McConnell has made confirming judges central to his tenure as majority leader.
The Circuit Courts, the second-highest courts in the country, are often a breeding ground for Supreme Court justices. Liberal court watchers say that the lack of diversity is troubling.
"Nearly a third of the nation's Circuit Court judges were picked by Trump and confirmed by Republican senators,” Paul Gordon, senior legislative counsel for the liberal judicial organization People for the American Way. “Not even one of those judges is African American, and they are making decisions with devastating impacts on the lives of Black people."
To conservatives, the diversity of the judges matters less than their conservative ideology.
David McIntosh, a board member of the Federalist Society and president of the conservative activist group Club For Growth, said Trump’s choices are “constitutionalists and very good judges that believe in a limited judiciary.”
And Mike Davis, president of the conservative judicial watchdog group Article III Project, said that Democrats have voted against minority and female judicial nominees, including Neomi Rao, who was approved along party lines in 2019 for the D.C. Circuit.
“Democrats — especially during election season — claim they want Republicans to appoint more diversity to the federal bench," Davis said. "But Democrats don’t actually mean it, as evidenced by their pattern and practice — for decades — of opposing women and minority judicial nominees from Republican presidents.”
Trump and McConnell have confirmed more judges at a faster rate than any recent administration other than Jimmy Carter's, when the judiciary was greatly expanded.
McConnell has confirmed 53 Circuit Court judges appointed by Trump in three-and-a-half years. Obama confirmed 55 in all eight years of his presidency. For all judges, Trump has now confirmed 200. George W. Bush follows with 197 at this point in his presidency, and Bill Clinton with 186.
CORRECTION (June 24, 2020, 5:55 p.m. ET): A previous version of this article misstated the year Judge Neomi Rao was confirmed to the D.C. Circuit Court. It was 2019, not 2013.
