The Judiciary’s Design

Our system of government did not come together by chance. The Founders designed it with a defined role for each of the three branches: the legislative branch makes the law, the executive branch enforces the law, and the judicial branch interprets the law. The system works best when each branch operates as it was designed.

Judges decide legal disputes by interpreting and applying written law, such as the Constitution and statutes, to the facts of particular cases. They must do so impartially, taking the law as it was written rather than changing what it means to suit their own views or politics. The law, not the judge, must determine how cases are decided.

The conflict over judicial appointments is about whether judges should still have the role that the Founders designed. Should they follow the law as already made or be able to control the law to serve their own agendas or political interests by changing what the Constitution and statutes mean?

Judicial Appointments

The Constitution gives the power to nominate judges to the president and, as a check, requires the Senate’s consent for the president to appoint them. The appointment process worked smoothly for more than two centuries. From 1789 to 2000, 97% of the judges approved by the Senate had no opposition at all. Since then, however, the Senate has increasingly acted like a competitor, rather than a partner, in the process. Longstanding confirmation process norms have radically changed and, today, conflict over nominations to all three levels of the federal judiciary has become commonplace.

The Judicial Appointments Tracker

The Judicial Appointments Tracker provides data on seven features of the process: judicial vacancies, nominations, hearings, confirmations, votes to end debate, roll call votes, and average opposition. It is frequently updated to provide the data in each category for the current president and comparison data at the same point under previous presidents. Sources for the data used in the Judicial Appointments Tracker include the Administrative Office of the U.S. Courts, Federal Judicial Center, Senate Judiciary Committee, Congressional Research Service, and Library of Congress.

Vacancies

• The Judicial Appointments Tracker covers courts on which judges have unlimited terms; they serve until they choose to leave or are removed by impeachment. These are:
  • U.S. District Court (663 total seats)
  • U.S. Court of Appeals (179 total seats)
  • U.S. Court of International Trade (9 total seats)
  • U.S. Supreme Court (9 total seats)
• The data above are the number and percentage of seats that are currently vacant. Data for the current president are as of the latest update and for previous presidents as of the first of the current month.

Nominees

• The Judicial Appointments Tracker covers nominees the president has officially named and sent to the U.S. Senate, as indicated by either the Senate website here or on Congress.gov.

Hearings

• The Senate Judiciary Committee holds hearings on the nominees covered by the Judicial Appointments Tracker. The percentage above is of the president’s nominees.

Confirmations

• Nominations approved by the Judiciary Committee are listed on the Senate’s executive calendar here and the Senate must be in “executive” rather than “legislative” session to consider nominations.
• The percentage above is of total judiciary seats

Cloture Votes

• The Senate must invoke cloture, or end debate, on a nomination before it can vote on confirmation. If all Senators agree, cloture occurs easily without a time-consuming roll call vote. If some Senators object, there must be a formal recorded vote.
• The percentage above is of confirmations.

Recorded Votes

• Like cloture, confirmation can occur easily by unanimous consent or slowly with recorded votes, which require the presence of all Senators and can each consume more than 45 minutes.
• The percentage above is of confirmations.

Average No Votes

• Between 1789 and 2016, fewer than 4% of judicial nominees were confirmed with any opposition. That jumped to 78% under President Trump and 97% under President Biden.
• The average above is for all confirmed nominees.