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Keith Bybee Helps TIME Fact-Check the State of the Union Speech

Posted on Wednesday 2/6/2019
Keith Bybee

Here Are the Facts Behind President Trump's Biggest State of the Union Claims

(TIME | Feb. 6, 2019) President Donald Trump had a lot of ground to cover in his rescheduled State of the Union address Tuesday night.

The longest government shutdown in history just ended at an impasse, new trade talks with China just wrapped up, a summit with North Korean leader Kim Jong Un is in the works and the United States is pulling out of its nuclear arms treaty with Russia. Trump also boasted of the unemployment rate, which is near its lowest point in about 50 years  ...

Claim: Trump has stacked the courts with conservative judges

Trump has appointed 85 judges to federal courts that have been confirmed by the Senate in the President’s first two years, according to Russell Wheeler, a visiting fellow at the Brookings Institution and expert of the judicial system. In addition to nominating two conservative judges to fill the seats left vacant by the death of former Supreme Court Justice Antonin Scalia and the retirement of former Justice Anthony Kennedy, Trump has also outpaced his recent predecessors in filling vacancies on circuit courts, the second-highest rung in the U.S. judicial system.

The makeup of federal courts proves very influential in U.S. politics, especially when a President known for abrupt decisions is at the nation’s helm. In recent months, courts have ordered injunctions against the Trump Administration’s family separation policy, its decision to add a question about citizenship to the 2020 Census and its plan to immediately end former President Barack Obama’s Deferred Action for Childhood Arrivals program.

But Trump pegged his presidential campaign on the promise that he’d deliver conservative judges, and on that front, he’s been largely successful, says Syracuse University political science and law professor Keith Bybee.

“This is an area where he has actually been successful as he advertises. When he came into office, there was an unusually large number of vacancies on the federal bench,” he said. “It was largely because in 2015, when Republicans gained control of the Senate, they really slowed the pace of confirming judicial nominations. So when Trump came into office, there was a large backlog of vacancies.”

Bybee also says the gains can partially be attributed to new rules that currently favor a Republican Senate majority. Any federal judicial nominee, including for the Supreme Court, can be confirmed by a simple majority instead of the previously required 60 votes. “A large number of vacancies, plus an expedited confirmation process has led to a large number of the Administration’s appointees being confirmed by the Senate,” he says. Further, not all of Trump’s judicial nominations are replacing liberal judges. “You sometimes get a one-for-one swap,” says Bybee, citing conservative Justice Neil Gorsuch’s replacement of conservative Scalia ...

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