# Debate Fact-check: Did Dems leave 100+ judge positions open? **URL:** \ **Category:** Politics & Elections\ **Created:** [October 2, 2020, 3:29pm UTC](https://boards.straightdope.com/t/debate-fact-check-did-dems-leave-100-judge-positions-open/922046 "2020-10-02T15:29:16Z")\ **Posts on this page:** 13\ **Page:** 1
**Author:** ![Dr\_Paprika](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dr_paprika/32/3042_2.png) [@Dr\_Paprika](https://boards.straightdope.com/u/Dr_Paprika)\ **Post date:** [October 2, 2020, 3:29pm UTC](https://boards.straightdope.com/t/debate-fact-check-did-dems-leave-100-judge-positions-open/922046/1 "2020-10-02T15:29:16Z")
Was not planning to watch the debate. But tuned in later and couldn’t turn away from the appalling shyte show, having done a little debating myself. The papers lambasted Trump. But Biden too. I did not think Biden’s comments: “Shut up, man”, “liar” or “You’re the worst President” were particularly harsh under the circumstances although more decorum would have been preferable all round. I did not see equivalence between Trump’s provocation and a measured reaction to that. But Trump scored some points with his base discussing filling judge roles. Apart from the obvious and public (even in Canada) SCOTUS positions, he claimed the Democrats left many dozens of other judge positions empty. Don’t recall if he said 150 or 180 but it was a big number. No doubt some were involved in politically contentious confirmations, filibusters, etc. **But to what extent is Trump’s statement or description of judge openings true? Why?** In Canada, a judge was nationally criticized for wearing a MAGA hat. I am so pleased that politics plays a lesser role in Canada (even though it is likely becoming more important and is probably there to some degree and more subtle). ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [October 2, 2020, 3:33pm UTC](https://boards.straightdope.com/t/debate-fact-check-did-dems-leave-100-judge-positions-open/922046/2 "2020-10-02T15:33:21Z")
Yes, it is true that there were \>100 judicial openings at the end of the Obama administration. This is because the GOP controlled the Senate, which is required to confirm any judicial appointments. You may recall them refusing to consider a SCOTUS nominee, because that made the news. What was less reported is their refusal to consider and vote on many appeals court nominations and ones for lower federal courts as well. Remember, they had the majority so there was no way for the Democrat party to push nominees through (unlike the current situation where there is no way for the Democrats to stop any Trump nominees). So, “Obama left seats open” is maybe half-true. “Democrats left seats open” is false. “The GOP prevented Obama from filling seats” is more accurate. ---
**Author:** ![Dr\_Paprika](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dr_paprika/32/3042_2.png) [@Dr\_Paprika](https://boards.straightdope.com/u/Dr_Paprika)\ **Post date:** [October 2, 2020, 3:34pm UTC](https://boards.straightdope.com/t/debate-fact-check-did-dems-leave-100-judge-positions-open/922046/3 "2020-10-02T15:34:53Z")
Such an explanation is unsurprising. But is it without precedent, or frequent filibusterism? ---
**Author:** ![Hari\_Seldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hari_seldon/32/5173_2.png) [@Hari\_Seldon](https://boards.straightdope.com/u/Hari_Seldon)\ **Post date:** [October 2, 2020, 3:55pm UTC](https://boards.straightdope.com/t/debate-fact-check-did-dems-leave-100-judge-positions-open/922046/4 "2020-10-02T15:55:32Z")
I’m not sure it was unprecedented but contrast with the fact that RBG was confirmed by a vote of 96-3. Judicial appointments were rarely contested. Thomas and Bork were exceptional cases, but they did vote on them, not just stonewall. ---
**Author:** ![RitterSport](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rittersport/32/6326_2.png) [@RitterSport](https://boards.straightdope.com/u/RitterSport)\ **Post date:** [October 2, 2020, 4:30pm UTC](https://boards.straightdope.com/t/debate-fact-check-did-dems-leave-100-judge-positions-open/922046/5 "2020-10-02T16:30:25Z")
I think it’s pretty unprecedented to just shut down the president’s ability to put judges on the various federal courts, yes. McConnell brags about it all the time. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [October 2, 2020, 4:30pm UTC](https://boards.straightdope.com/t/debate-fact-check-did-dems-leave-100-judge-positions-open/922046/6 "2020-10-02T16:30:30Z")
> [@Dr\_Paprika](#): > > Such an explanation is unsurprising. But is it without precedent, or frequent filibusterism? I don’t know if it is completely unprecedented, but it is certainly a change from recent practice. Here is a rundown of the last years of other recent Presidents where the opposition controlled the Senate. And remember, those even had filibusters available for judicial nominees. > **[Senate obstructionism handed a raft of judicial vacancies to Trump—what has...](https://www.brookings.edu/articles/senate-obstructionism-handed-judicial-vacancies-to-trump/)** > > Trump has described himself as taking the initiative to fill judicial posts, but obstructionism in the Senate during the Obama era created a much larger number of vacancies than presidents typically inherit. Basically we have reached the point where unless the President’s party controls the Senate, they will not be able to appoint any judges during the last year or so of their Presidency. And, of course, based on the current attempt to seat Barrett, if the Democrats gain the Senate but Trump is re-elected, they will almost certainly refuse to confirm _any_ nominee he puts forth for SCOTUS for as long as they have the majority. ---
**Author:** ![Fiddle\_Peghead](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fiddle_peghead/32/3506_2.png) [@Fiddle\_Peghead](https://boards.straightdope.com/u/Fiddle_Peghead)\ **Post date:** [October 2, 2020, 8:01pm UTC](https://boards.straightdope.com/t/debate-fact-check-did-dems-leave-100-judge-positions-open/922046/7 "2020-10-02T20:01:31Z")
I don’t like the fact that McConnell and the Senate shut down a lot of Obama’s ability to appoint federal judges to the bench, any more than a lot of us here. So, doing a rough extrapolation if Trump had served two years already, he would have appointed 388 judges to Obama’s 312. I am heartened to see though that at this point, 400 sitting judges were appointed by Democrats, and 392 were appointed by Republicans. While the Dem number would surely have been much higher if “Moscow” Mitch weren’t in office, all things being equal, hopefully the overall judicial philosophy of these judges leans slightly to the progressive side. But it wouldn’t be my much. These numbers show one more reason why this election is so important. See chart one page down. > **[How Trump compares with other recent presidents in appointing federal judges](https://www.pewresearch.org/fact-tank/2021/01/13/how-trump-compares-with-other-recent-presidents-in-appointing-federal-judges/)** > > Donald Trump leaves the White House having appointed nearly as many appeals court judges in four years as Barack Obama appointed in eight. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [October 2, 2020, 8:15pm UTC](https://boards.straightdope.com/t/debate-fact-check-did-dems-leave-100-judge-positions-open/922046/8 "2020-10-02T20:15:19Z")
> [@Hari\_Seldon](#): > > I’m not sure it was unprecedented but contrast with the fact that RBG was confirmed by a vote of 96-3. And Antonin Scalia was confirmed with a vote of 98-0. Judicial nominations used to only be challenged when there was some specific grounds to oppose that individual. McConnell initiated the policy of blanket opposition to any nomination from the opposing party. ---
**Author:** ![Dr\_Paprika](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dr_paprika/32/3042_2.png) [@Dr\_Paprika](https://boards.straightdope.com/u/Dr_Paprika)\ **Post date:** [October 2, 2020, 8:50pm UTC](https://boards.straightdope.com/t/debate-fact-check-did-dems-leave-100-judge-positions-open/922046/9 "2020-10-02T20:50:41Z")
Man, I don’t dislike a lot of people. But I can’t stand Mitch McConnell. He has damaged politics for generations with this approach. Obviously, both parties will eventually be in the opposite situation. The other guy I don’t like is Frank Luntz. Aware words have power, he taught politicians to characterize opponents using extreme vocabulary. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [October 2, 2020, 10:48pm UTC](https://boards.straightdope.com/t/debate-fact-check-did-dems-leave-100-judge-positions-open/922046/10 "2020-10-02T22:48:28Z")
> [@Jas09](#): > > Basically we have reached the point where unless the President’s party controls the Senate, they will not be able to appoint any judges during the last year or so of their Presidency. It was not just during their last year in office. Republicans were very seriously considering to flat out refuse to appoint any judges whatsoever that Clinton might appoint had she won. - [Senators Ted Cruz and Richard Burr and some conservative legal scholars are arguing that if a Democrat wins the election, the Senate should refuse to confirm anyone.](https://www.theatlantic.com/politics/archive/2016/11/whats-the-opposite-of-court-packing/506081/) - [If Clinton wins, more in GOP say no to full Supreme Court](https://www.pbs.org/newshour/politics/clinton-wins-gop-say-no-9-supreme-court) - [If Clinton Wins, Republicans Suggest Shrinking Size of Supreme Court](https://www.npr.org/2016/11/03/500560120/senate-republicans-could-block-potential-clinton-supreme-court-nominees) - [Sen. McCain Says Republicans Will Block All Court Nominations If Clinton Wins](https://www.npr.org/2016/10/17/498328520/sen-mccain-says-republicans-will-block-all-court-nominations-if-clinton-wins) - [The Senate Should Refuse to Confirm All of Hillary Clinton’s Judicial Nominees](https://www.cato.org/publications/commentary/the-senate-should-refuse-confirm-all-of-hillary-clintons-judicial-nominees) ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [October 2, 2020, 10:54pm UTC](https://boards.straightdope.com/t/debate-fact-check-did-dems-leave-100-judge-positions-open/922046/11 "2020-10-02T22:54:39Z")
Missed the edit window: I would be surprised if they don’t do the same to Biden if he wins and republicans retain control of the senate. ---
**Author:** ![Wesley\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wesley_clark/32/20581_2.png) [@Wesley\_Clark](https://boards.straightdope.com/u/Wesley_Clark)\ **Post date:** [October 4, 2020, 5:37am UTC](https://boards.straightdope.com/t/debate-fact-check-did-dems-leave-100-judge-positions-open/922046/12 "2020-10-04T05:37:19Z")
> [@Dr\_Paprika](#): > > Such an explanation is unsurprising. But is it without precedent, or frequent filibusterism? Judicial nominations used to be fairly bipartisan, but now are very partisan. Under Obama, the GOP blocked judicial nominations, so Harry Reid declared you only needed 50 votes for district or appellate court votes. He kept the 60 vote minimum for supreme court nominees though. From 2009-2014, Obama was president and the democrats controlled the senate. The democrats got over 300 judges passed (which is about normal for a president who serves for 8 years). However I’m assuming Obamas nominees for not just the supreme court but also the appellate court and district courts were mostly blocked in 2015 and 2016 since the GOP won 9 seats in the senate in 2014. Having said that, there was also something called the ‘blue slip’ tradition. If Obama wanted to nominate an appellate or district judge in a state like TX, and GOP senator Ted Cruz from Texas didn’t like the judge, he could use the ‘blue slip’ to block the nominee. > **[Blue slip](https://en.wikipedia.org/wiki/Blue_slip#Senate)** > > A blue slip or blue-slipping is one of two different legislative procedures in the United States Congress. My understanding is the GOP used this tradition to block a lot of judges and then (obviously) ended this tradition after they won in 2016. However I have no idea how many appellate or district judges from 2009-2014 the democrats could’ve nominated but didn’t due to this blue slip issue. I don’t know if its 0, 20, 50 or some other number. Having said that, Trump has appointed roughly the same number of appellate judges in 4 years as Obama appointed in 8 years. However if the GOP refused to nominate any judges during 2015-2016 that would mean that both Obama & Trump really had 6 years of judicial vacancies to fill. Appellate judges have the real power. They can overturn district judges, and the vast majority of appellate decisions are not taken up by the supreme court. Hence McConnell has prioritized these. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [October 4, 2020, 3:26pm UTC](https://boards.straightdope.com/t/debate-fact-check-did-dems-leave-100-judge-positions-open/922046/13 "2020-10-04T15:26:03Z")
> [@Wesley\_Clark](#): > > Appellate judges have the real power. They can overturn district judges, and the vast majority of appellate decisions are not taken up by the supreme court. And they are a bit more under the radar. People hear about the supreme court fight on the news everyday. Only people that pay some attention to the goin ons of government hear about these judges.