Remarks as Prepared for Delivery
Thank you for that kind introduction, Will, and for the invitation to join you today. Though I wish I could join you in person, even at this distance, it is a great pleasure to be here with you all.
For the past three years, I have been blessed to serve in what I believe to be one of the best jobs in the federal government, leading the Office of Legal Policy. At OLP, we serve as policy advisors to the Attorney General and Deputy Attorney General. And, as many of you know, we participate in the selection, vetting, and preparation of all nominees to Article III courts.
That mission affords a unique opportunity to evaluate where we are and how far we have come. In a moment, our panelists will share their insights into the most notable of the 63 decisions the Supreme Court issued this term. But first, it is important to put that number in perspective. In 2018, there were more than 358,000 cases filed in federal district courts across the country, and only 76 decided by the Supreme Court. What that means is that, for every Supreme Court opinion that year, there were literally thousands of cases resolved by district court judges and courts of appeals judges across the country. That is why, from the Supreme Court to the district courts, the composition of the federal judiciary has a profound impact every day, in every state in America — and will continue to have an impact for generations to come.
Since the day that President Trump took office, this Administration has been focused on identifying and confirming strong constitutionalist judges. This, of course, could not have been accomplished without the incredible support of Leader McConnell and Chairmen Grassley and Graham, who have prioritized judicial appointments. In the past three and half years, President Trump has nominated and the Senate has confirmed two Supreme Court justices, 53 court of appeals judges, 147 district court judges, and two Court of International Trade judges, not to mention the other judges who sit on various specialty federal courts. Those numbers, of course, include Colorado’s own Justice Neil Gorsuch, and Judges Allison Eid of the Tenth Circuit and Dan Domenico of the District of Colorado.
All told, after just three and half years, there are more judges on the federal bench today appointed by President Trump than any other president except President Obama.
Even more extraordinary: Right now — today — at 52 (and with one more being sworn in next month), there are more active judges on the courts of appeals appointed by President Trump than any other President. And for the first time in at least 40 years, there is not a single unfilled vacancy on the nations’ courts of appeals.
And yet this incredible pace has not come at the expense of finding highly qualified candidates. The President’s nominees are, in fact, historically well-qualified. According to many objective measures — and according to the American Bar Association, which Senate Democrats describe as “the gold standard by which judicial candidates are judged” — President Trump’s judicial appointments are among the most qualified in history.
Some, of course, question the ABA’s “gold standard” honorific. Peer-reviewed studies have shown the ABA evaluates nominees of Republican presidents more harshly than those of Democratic presidents. One study found that “even controlling for credentials, Clinton nominees [had] 9.7-15.9 times as high odds of getting a unanimous well qualified ABA rating as similarly credentialed Bush appointees.” That study concluded that just being nominated by a Democrat (Clinton) rather than a Republican (Bush) was “better than any other credential or than all other credentials put together.”
It is therefore all the more extraordinary that the judicial appointees over the past three and a half-years have earned the ABA’s “Well Qualified” rating at the highest rate in five decades: A remarkable 69.4 percent of President Trump’s Article III judicial appointees have earned the ABA’s “Well Qualified” rating. Since the Ford Administration, only President George W. Bush came close to matching that level, with 69.3 percent.
These accolades should be expected, and other measures tell the same story. From Supreme Court and appellate clerkships to prior service as a state or federal judge or prosecutor, these judicial nominees combine sterling credentials with deep and meaningful accomplishments. One liberal commentator acknowledged that: “[B]ased solely on objective legal credentials, the average Trump appointee has a far more impressive résumé than any past president’s nominees.”
We know, of course, that these judges are more than their resumes. They have lived lives of character, service, and patriotism, and have chosen to serve their country for a lifetime. Meeting these remarkable men and women, working with them, preparing them for their hearings, and seeing them confirmed to the bench, is a highlight of my job. They are some of the very best of our profession.
And I am proud to report that more judges are on the way. With two dozen nominees currently awaiting confirmation on the Senate floor, and more still working their way through the Judiciary Committee, we are working to fill every vacancy we possibly can in the time we are blessed to have.
While we celebrate these confirmations — and rightfully so, given the unprecedented obstruction even of nominees with broad bipartisan support — let there be no misunderstanding that these judges are political actors: they are not. Consistently, our nominees are faced with a barely veiled, unrestrained cynicism that they can judge according to the law. They are derided for pledging to judge neutrally — as if that is impossible or they are incapable. But neither is true. What I have seen over and over, is that these judges sincerely believe in the foundational principle that their personal beliefs should play no role in their decisions. They adhere to a limiting judicial philosophy that guides their interpretation of the law, in a way that both makes it consistent, and most compatible with representative democracy. These are not platitudes. They are expectations that are essential for our republic to function. And if, as a profession and a society, we cast aside those fundamental expectations in favor of cynicism and political power, we risk losing confidence in the institution that is meant to serve as our last protection from tyranny.
Of course, no one is perfect. And judges are human, and fallible. But if we have found — as I believe we have — brave, smart, and principled people who believe that there is a right answer, and strive every day to find it, not create it, then we have done our job.
Thank you very much for having me, and I look forward to hearing from this impressive panel.
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Author: August 12, 2020