Judicial Vacancies Are At A Crisis Point- What Is Going To Happen: We are at a point where the amount of vacancies in the judiciary is frightening. Can the judiciary effectively bring justice at the federal level at this point? What has Trump done with the judiciary? What is going to happen next? Tune in now to find out. 

Air Date: 04/10/2019

Guest: Tom Jipping

On-air Personalities: David Barton, Rick Green, and Tim Barton


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Transcription note:  As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.

Faith And The Culture


You find your way to the intersection of faith and the culture. Welcome to WallBuilders Live. Today, we’re talking about today’s hottest topics on policy and faith and the culture. We always do that from a biblical, historical, and constitutional perspective.

You look at any issue in the culture from those three perspectives. You’ll get to the right answer, and be able to influence your community, your state, your nation to take that right position on that issue. You can find out more about us head at WallBuildersLive.com and Wallbuilders.com.

We’re here with David Barton America’s premier historian and the founder of WallBuilders. We’re with Tim Barton. National speaker, and pastor, and president of WallBuilders. My name is Rick Green. I’m a former Texas legislator.

Check out WallBuildersLive.com for more information or go to Wallbuilders.com. Today and get some tools for yourself and your family. Get some great programs, some constitution programs, some history programs, read the articles there on the website.

All of it is designed to equip and inspire you to be a part of rebuilding the walls just like it says there in Nehemiah. Rise and rebuild the walls that we may no longer be a reproach.

We’re talking about the foundations folks; we are talking about those foundational principles that made America the greatest nation in the history of the world. And that can restore America to that kind of greatness if we will infuse them back into the culture.

And that we is you. It’s me. It’s David and Tim it’s all of us that make up we, the people right there at the beginning of the Constitution.

Twenty-Percent Of The Judiciary Has Not Be Filled

David, Tim we’re going to have Tom Jipping with us later in the program from the Heritage Foundation to talk about a particular area of the culture, and that is the federal government.

One particular branch the judiciary and the fact that we’ve got a lot of vacancies there to the point that really, it’s kind of hard for the judiciary to do its legitimate constitutional function. To give us justice at the federal level when 20% of the judiciary has not been filled.

The Dems have been blocking that, and that’s a big issue. We’ll be talking about a little bit later in the program. I’d like to ask you guys as we start our program today how do you think President Trump has done on the judiciary both in terms of making good appointments and also in terms of working the process to get those appointees approved.

Two Questions – So Many Great Things Are Happening In The Trump Administration That Are Untold


Well, there’s two things there, and I don’t think you can say that he’s working the process he shouldn’t be. He’s the one who does part of the process. He can make the nominations. It’s the Senate who works the process to get them approved. And so I think it’d be two questions: How has Trump done on nominating judges and second is, how has the Senate done on approving his nominations.

So in the first part, I think when you look at him, and what he’s done, I think this is one of the great untold stories of the Trump administration. By the way, I think there are many many many untold stories of the Trump administration that are great.

CNN, MSNBC the guys from the mainstream media they want to focus on the investigation. Now that it’s over, it wasn’t complete, and they left the door open, and there could have been an obstruction, and you know they go off on all their stuff.

They’re not talking about so much of what is happening in so many Cabinet levels. What’s happening with HHS, what’s happening with HD, what’s happening with the Interior Department. So many great things are happening there in such a positive way.

Democrats Are The Ones Obstructing The Process

What’s happening with the judiciary is certainly one of these stories. We recently had a lady; I believe her name is C. Lane Rahall. I forget her exact name but she just got confirmed, and the Democrats had held her up because they said she’s a Catholic. We can’t have her own.

You can’t have a Catholic on because she’s probably pro-life. I mean that was their objection to her. It’s not what she’s qualified to be a judge, is not whether she has expertise as she’s probably pro-life because she’s Catholic –


It seems like there’s something in the Constitution about a litmus test.

There can be no religious test for holding; it seems like there was something in the Constitution about that although I don’t know if the Democrats got the memo on that one.

You see the obstruction in one of the ironies at the end of the Mueller investigation where you know they wanted to blame Trump for collusion and for obstructing the process.

Ultimately when you look at who’s doing obstructing it’s not Trump and the Republicans, it’s largely the Democrats in Congress who are obstructing actual judges from being put in the positions where they’re supposed to be.

We’ve talked about it on Good News Friday. How well Trump has done in some of those picks. And we know some people who are, I guess we might say, at the top recommenders for him who help kind of pick out some of the names of people who would be good.

When you look at the people he’s chosen by and large, maybe 90 plus percent of them we would go, that was a really good pick for that position. There’s a few we can look at and go okay maybe not the best, not our favorite but by and large, done an incredible job in a very hostile environment from a party that is absolutely trying to shut down everything he’s doing.


Now, what happened is a few years ago, there were actually, but when the election of Trump came up as between Trump and Hillary, there were 100 judicial vacancies at that point in time.

The Democrats declared that to be a constitutional crisis, that you cannot have 100 vacancies on a court system. Which was at that time about 11% of the judicial slots and the courts were open. And so  11% is a constitutional crisis.

Well, guess what?

Constitutional Crisis – 20-Percent of The Judicial Slots And The Courts Are Open

We’re now up to 20-percent of those slots are open because the Democrats are doing everything they can to obstruct every judge. Whether they’re competent or not if it comes from Trump, we can’t have them on the court.

They’re just as aware as we are of how good the judges are on constitutional issues which really puts them in a hurtful position because most of the issues they support are not things that go with the original intent and that go with the direction of the Constitution they are much more progressive.

We need to move past this constitution. So there’s a lot of obstruction going on. The Senate is doing a pretty poor job of moving those nominees forward. We have seen some accounts were that the rate at which they’re moving right now would take eleven years to get all these nominees confirmed.

Eleven years, are you kidding me? Nobody’s allowed even to be president that long. So that means long after he would be gone. They still haven’t confirmed some of these. So what the Senate is doing is not good now.

A guy who’s looked at this very closely is a guy named Tom Jipping. And I’ve got to say Tom is a friend from way back. The first-ever Supreme Court case I was involved with, it was with Tom Jipping.

Tom and I. I remember we stayed up late at night working on briefs and working on our arguments and et cetera.  Tom is now over at the Heritage Foundation. He was a congressional staff member for a number of years. Very much a guy who is aware of how this process works.

And he wrote a great article recently on what’s a constitutional crisis.

Now Democrats said 100 open slots will now work 20%. So Tom has a great perspective on what’s happening with this.


Tom Jipping,  our special guest. Stay with us. We’ll be right back on WallBuilders Live.

A Moment From American History

This is Tim Barton from WallBuilders with another moment from American history. Too often today history education excludes great black heroes from the American founding. Such as Lemuel Haynes.

Haynes, though abandoned as a baby, pioneered churches across upper New England. He became the first black American to pastor a white congregation, to receive an honorary master’s degree, and to be ordained by a mainstream Christian denomination, The Congregationalist.

He was a soldier during the American Revolution, and in his churches on George Washington’s birthday, he regularly preached sermons honoring George Washington. Even late in his life, he expressed his willingness to go back to battle if necessary to protect America, which he called, “€œa sacred ark.”€

American history is filled with numerous examples of black heroes who are largely ignored by mainstream education today. For more information about Pastor Lemuel Haynes and other colonial Patriots go to WallBuilders.com.


Welcome back. Thanks for staying with us here on WallBuilders Live.

Tom Jipping is with us from Heritage Foundation, Senior legal fellow there, and also director of the think tanks Meese Center for Legal and Judicial Studies.

Tom, Thanks for your time today sir.


Thanks for having me.

There’s A Pretty Forceful Obstruction Campaign On The Senate Floor


Hey, great article on the judicial vacancies right now that we’re facing. I know when Trump came into office, there were quite a few vacancies. Your article says it’s even gotten worse since then. Even with the approvals and the confirmations that have taken place.


It has, and it’s a little bit unusual because first of all, the president’s own party controls the Senate, and of course, they would want to confirm as many of the president’s nominees as possible. And second, the president’s making more nominations, and the judiciary committee is holding hearings for more nominees than was typical in the past.

So the fact that vacancies are going up not down suggests that there’s a pretty forceful obstruction campaign going on on the Senate floor.


Do they have, and when I say they do the Democrats that obviously want to block Trump’s appointees, do they have enough votes in to slow it down in the committee process or is it just the fact that once they get to the floor, a minority, unfortunately, can still rule in the Senate.

Three Basic Steps In The Appointment Process


Well, there are three basic steps in the appointment process. The president is the first one. He makes nominations, and he can make any nominations that he wants.

The second step is consideration by the Judiciary Committee, and they are too the majority party that the chairman of the committee pretty much determines the pace and the scheduling of hearings.

It’s only when you get to the Senate floor that the minority party, today that would be the Democrats can play a more forceful role, and that is what’s happening.

I think Democrats don’t have the votes, in the end, to defeat Trump nominees just on an up or down vote.

They do want to make with what it goes on on the Senate floor as slow and as cumbersome as possible to limit the total number of judges that Trump can appoint and to express their opposition to President Trump.

This is kind of a new phenomenon where the level of opposition to Trump nominees, who are all very well qualified, is really off the charts compared to what’s happened in the past and the only thing I can think of is that they’re using Trump’s nominees as kind of a proxy for Trump himself.

This Hyper-Partisan anti-Trump environment Is Turning This Whole Process Upside Down


Yeah I mean wasn’t it, I mean even Ginsburg as a Clinton nominee one of the most leftist judges we’ve had in history. I mean, wasn’t she approved something like 90 to 2 or 90 to nothing or something crazy like a vote.


The vote for her was 96 to 3. And you know the other comparison frankly, is that there are about 10 Democrats today in the Senate who were also in the Senate during the first couple years of George W. Bush’s presidency. So two Republican presidencies. They only voted against about 3% of Bush judges, but they’re voting against almost 60% of Trump judges. And the comparison they’re just as qualified.

They’re pretty much the same kind of nominees. But this hyper-partisan anti-Trump environment that we’re in is what is turning this whole process upside down.


I guess Tom is it no longer have we lost a lot of the members that used to say look, the Constitution gives the president his power. Yes, we have advice and consent but when you elect a President you elect a philosophy, and this is his prerogative.

I mean I’ve heard Lindsey Graham still express that and Democrats used to express that. Is that gone or do you think it’s just the Trump factor?


Well yeah, I think it’s both. There’s a general decline in the commitment by our elected representatives to those principles, but then at the same time, there’s a real pure lack of understanding by the American people of those principles. 

I think that combined with just the irrational opposition to President Trump, really makes for a bad combination. We’re talking about the degradation of the most fundamental principles and the sort of integrity of our institutions like the Senate. There used to be an agreement on those, and then you know you fight over policies and some disagreements on some individual nominees. Now it’s just a power play really across the board.

Senate Rule 22


Walk us through, before I let you go, educate myself. I want to understand this a little better than your listeners do as well. That process of the vote that you talk about in the article this Senate Rule 22, and kind of how this thing works.


Sure. When a nominee gets to the Senate floor that is when the Judiciary Committee has approved it. Are there’s two steps left to get approved.

The first step is that the Senate has to end debate on the nomination before it can vote up or down on confirmation. That ending debate part used to be quite simple.

The two sides would cooperate; they would agree on how much debate they needed, and then they would schedule a vote. Democrats aren’t cooperating on any of those agreements anymore.

So there’s a Senate rule that creates a more formal process for ending debate. And it’s time-consuming and cumbersome.

It requires filing a motion and two days later than the Senate has to vote, and then there still can be a period of debate.

Since Democrats don’t have the votes to defeat any of these nominees the only reason for them to force the Senate to take this extra vote every single time is to eat up three four or five days for every nominee. Even if there’s no opposition in the end to that nominee, that’s the kind of thing like I say, this never happened before. But those are the tactics that are being used now.

Brennan Center – A Liberal Think Tank


And your article mentions the Brennan Center taking a stand against these delays, and the vacancies that are there. That’s a pretty moderate to liberal think tank right?


Oh it’s a very liberal think tank it’s named after Justice William Brennan who was one of the most liberal justices, I’d probably say more liberal than Ruth Bader Ginsburg.

There used to be an understanding of just the common sense idea that if for example, today almost 20%of the U.S. District Court, which is where all the cases in the federal system start, almost 20% of the judges of the positions on that court across the country are empty.

How Can The People Rely On The Judiciary or Criminal Justice System When 20-Percent Of It Is Empty

How can the judiciary do what it’s supposed to do, how can people rely on the judiciary for either civil cases or the criminal justice system when 20% of it is empty.

So that’s damaging to that branch of government, and it’s been that way for almost two years now.

And Democrats used to say so. They used to acknowledge that hey we’ve got a; we can fight over a few individual judges, but we’ve got to make sure that the judicial branch can operate the way it’s supposed to. And they’re not doing that anymore.


Last thing for let you go is there anything that the President and Senate majority leader can do to speed this up or to change it? Or is this just the hand that they have to play with?

The Republicans Should Muscle Through It


Well, there’s there are a couple of things couple of ideas that have been floating around about possible changes to the rules that could help a little bit. Frankly, this is the process that

Democrats have forced to be. I think the majority of Republicans should muscle it through if they have to file to end debate on every nominee than do it. If they have to constantly be pushing for votes and keeping this high on the priority list then do it. But it is fairly limited.

The Senate Was Designed By Our Founders To Be a Deliberative Body

I mean the Senate was designed by America’s founders to be a deliberative body. It was intended to give senators more say in things than is typical in the house.

We don’t want to trash the design that our founders gave us but it is worth fighting for, and that’s what I hope Republicans do.


Yeah, absolutely. At least we use the tools that they do have. Like you said let’s just go ahead and file away and on the president’s side to keep those nominations coming –

President Trump Has Made Almost 170 Outstanding Nominations So Far


Sure. You know he did a great, really a great job so far. I believe he’s made over almost 170 nominations since he took office and they’ve really been outstanding.

I’ve actually analyzed the ratings that they get from the American Bar Association which has been proven to be systematically biased against Republican nominees, and they really are outstanding. We’ve got so many vacancies.

I really hope he keeps the pressure on, keeps the pedal to the metal so to speak. Keep sending those nominees because they know the Judiciary Committee will promptly evaluate them. Then we’ve got to see him get them confirmed on the floor.


I’m glad to hear you say you’ve been pleased with them as well. I’ve been shockingly pleased. Back in 2016, I was thinking okay all of hers will be horrible; maybe half of his will be horrible.


I think that that’s important to point out. They’ve been very consistent, just generally good. They’ve been consistently very good.

The Heritage Foundation Has A New Tracking Website


Yeah, very pleased to hear that. Hey, I appreciate you coming on. We’d love to get you back again sometime. But thank you for keeping an eye on this. For putting out the word. We’ll have our listeners encouraging their U.S. senators to move this up as fast as


You know if that if they want to keep track of this. If you go to Heritage.org/judicialtracker.  The Heritage Foundation has a new tracking website that gives you current information and compares it to previous presidents on all of this stuff.

So that should help keep people informed as well.


Can you told me that website one more time


Sure. Heritage.org/judicialtracker


All right we’ll put that out today, and also have it on our website as well.

Tom, thanks so much. We appreciate your time. Thanks for coming on today.


Thank you very much for having me.


Stay with us folks. We”€™ll be right back with David and Tim Barton.

We Want To Hear Your Vet Story


Hey friends! If you have been listening to WallBuilders Live for very long at all, you know how much we respect our veterans and how appreciative we are of the sacrifice they make to make our freedoms possible. One of the ways that we love to honor those veterans is to tell their stories here on WallBuilders Live.  Once in a while, we get an opportunity to interview veterans that have served on those front lines that have made incredible sacrifices have amazing stories that we want to share with the American people.

One of the very special things we get to do is interview World War II veterans. You’ve heard those interviews here on WallBuilders Live, from folks that were in the Band of Brothers, to folks like Edgar Harrell that survived the Indianapolis to so many other great stories you heard on WallBuilders Live.

You have friends and family that also served.  If you have World War II veterans in your family that you would like to have their story shared here on WallBuilders Live, please email us at [email protected] Give us a brief summary of the story, and we’ll set up an interview. Thanks so much for sharing here on WallBuilders Live!


Welcome back. Thanks for staying with us here on WallBuilders Live. Thanks to Tom Jipping for joining us as well. We’ll have a link to his article at our website today at WallBuildersLive.com.

Back with David and Tim now. Guys, so I guess what was a crisis to the left a few years ago when Obama had the appointment power is no longer a crisis today.

There’s Still A Crisis To The Brennan Center


Well, it’s interesting that there’s still a crisis to the Brennan Center which is a very left center. As Tom pointed out Justice Brennan is probably further left than Justice Ginsburg is. And even they think it’s a crisis but not Democrat leaders in Congress.


Well, words only mean what we want them to mean. We want them to mean that. So it’s a crisis when we don’t get what we want. But it’s not a crisis if you don’t get what you want. That’s good. And so you see revealed it’s not about the principle.

It’s not about the policy; it’s about who gets to win. And so this is where words get to mean what we want them to mean. When we want them to mean that is: no, if Trump doesn’t get to win, that means we get to win therefore this is no longer crisis because we want to be in charge, we want to be in power. This is very much revealed by their behavior.

They are Slowing The Process Down Because The Appointed Judges Will Not Give Them Want They Want


I would say that the slowing of the process down is not because that’s the way they’re showing opposition to Trump. I think they’re slowing the process down because they know that the judges are being appointed right now, are not going to give them what they want.

They’re likely to lose abortion. They’re likely to lose the destruction of marriage. They are likely to have all of that rolled back in directions they don’t want.

And so for them, this is something I think they’re willing to fall on the sword over and they will use this procedure. As Tom pointed out even judges that have no opposition at all, they’re still delaying the vote on those judges.

The Democrats Have Evolved The Judicial Branch To Be Something More Than It Ever Was Intended To Be


Well, and this is one of the situations where sometimes you don’t realize that the sword you are wielding is double-edged because the Dems are the ones that helped make the judicial is such a powerful branch when it was not supposed to be.

The Founding Fathers meant the judicial branch to be the weakest. They designed it that way. You can read the Federalist Papers, where they explain. Madison Hamilton, John Jay, they explain: No, this is the weakest branch. It’s not that powerful. We’ll never be a threat to your liberties; it can’t do that much.

The Democrats evolved the judicial branch to be something more than it ever was intended to be. And now they’re afraid of the monster they created if the other side gets to wield the power of that monster.


Yeah. And Tom pointed out to Rule 22 is the source of this Rule 22 as I recall was passed back in 1918. I think it was under route Woodrow Wilson. And so it is a procedural process to slow down some votes and over the last 98 years, and where it best basically 101 years now, so over the last 98 years that rule was used on average of six times a year.

Since Trump has been in office, they’re using it over 120 times a year. They’re using the rules to create every impediment they can. The rule was never designed for that.

That’s where the Bible tells us in first Corinthians that the spirit of the law or the spirit of a rule is good. That’s what gives it life.

The Letter Of The Law Causes Destruction

But the letter of the law that’s what causes destruction. That’s what causes hardship. They’re using a rule in a way that was never designed to be used. As Tom pointed out, the Republicans are just going to have to just get it up and start saying OK we’re going to file for the end of debate on every one of these we’re going to stop this stuff of letting you add two three four days to every step in the process.

They need to do that because you are looking at a situation with 20% of judicial vacancies that loads all sorts of other courts up. And it keeps 20% of people who file cases from getting proper justice in there and their cases. It slows the whole process down. That’s not the way it’s supposed to work.

It’s doing a disservice to the people not to mention to the institution itself. But that’s why it is such a big deal what happens with the judiciary, and this is certainly not an area that’s been talked about by the news.

They’re not pointing to this. They’re not highlighting this. What they’re doing is focusing on whatever their issue is. Right now, still the aftermath of the Mueller investigation they’re trying to find a way to keep that alive.

This is something important, and this is where citizens ought to contact their senators and say hey guys the left and the right all agree that this is a constitutional crisis you need to move these judges through. And we’ve got the left and the right groups saying that. So this is a time to sound off.

When You Lose The Concept of Justice, You Lose The Society


Well, you mentioned that the justices. I”€™ve have been listening to Dennis Prager as rational Bible which is a cool commentary on the tour, and he’s going through each of the five books. I’ve been listening to Exodus, and he says over and over again in his commentary on how important justice is to a society. If you lose the concept of justice and when you don’t have justice and force, that you lose the society.

So I mean, when we talk about the courts not being able to function as much as we say things about the court doing things it shouldn’t be doing at the federal level and having the power it shouldn’t be doing.

We’re not anti-court. We’re all for justice and for a justice system that works. What we’re talking about here is preventing the justice system from being able to do his job because the court is not providing enough courts and enough judges when you have the backlog of cases.  

This Is A Vitally Important Issue

This is a vitally important issue, no doubt about it. In this case, you’re talking about not just one Supreme Court justice here that that doesn’t slow down justice being done. You’re talking about literally over 100 courts not having a judge in that position, and therefore that court cannot administer justice at all.

It’s a vitally important function that needs to be taken care of. So it was great for Tom Jinping to join us today and keep us updated on this and then give us the ways to change it.

Call your U.S. senator. Call them today, and say, hey get these judges moved and get the appointments approved so that our justice can be administered at the federal court level. Thanks so much for listening today. You’ve been listening to WallBuilders Live.