Fearing Losing Control, Republicans Aim To Push Judicial Nominees Through Senate

Republicans are planning on pushing judicial nominees through the Senate in case they lose control in November. Meanwhile, the possibility of a Supreme Court vacancy raises the stakes.

In what is perhaps a sign that Republicans are growing increasingly worried about the prospect of losing control of the Senate in November, Politico is reporting that Senate Majority Leader Mitch McConnell is working on pushing through the logjam of judicial appointments currently pending in the Senate:

Mitch McConnell is making a last dash to stock the judiciary with conservatives this year as a hedge against the chance that Republicans lose the Senate in November.

The GOP may have only a few more months of unified control of Washington to repeal Obamacare or enact President Donald Trump’s infrastructure plan. But the Senate majority leader is taking a longer view — and confirming as many conservative judges as possible to lifetime appointments.4

The move will show conservative voters that the Senate can still get things done even if Republicans lose the House and is part of McConnell’s years-long plan to reshape the courts after the presidency of Barack Obama shifted them to the left. Since becoming majority leader in 2015, the Kentucky Republican stymied Obama’s nominees for two years, including blocking a Supreme Court hopeful. And now he’s going into overdrive with Trump as president.

Trump has already nominated 69 judges, but there are 149 total vacancies. GOP leaders say McConnell is intent on filling as many as he can this year, in part out of concern that Democrats take back the Senate and exact retribution on McConnell and Trump for changing the face of the courts.

“You have to be realistic about it and go into it with an expectation that [losing the Senate] is a possibility. And for that reason, I think it’s important that we move judiciously to get done as many as we can,” said Sen. John Thune of South Dakota, the No. 3 GOP leader.

McConnell allowed only 20 confirmations of district and circuit judges during Obama’s last two years, a modern low according to congressional statistics. Already he has confirmed 32 judges for Trump, including Supreme Court Justice Neil Gorsuch.

But McConnell isn’t close to being done: After confirming three judges last week, McConnell is preparing to confirm another group of them this spring. More than 30 lifetime judicial nominations are ready for the floor, and the Senate Judiciary Committee is continuing to churn them out in preparation for a long, slow grind on the Senate floor.

Democrats can delay but not stop these judges through procedural tactics, dragging out each confirmation several days if they wish. The minority party is furious that McConnell slowed Obama’s judges only to prioritize Trump’s, and say the majority leader is trying to enact a conservative agenda while circumventing the legislative process.

“Senate Republicans haven’t been able to move much of their hard-right agenda because it’s so unpopular with the American people, so they’re trying to do in the courts what they couldn’t do on the Senate floor,” said Senate Minority Leader Chuck Schumer (D-N.Y.).

(…)

Democrats are delaying many judges and Republicans are mulling another rules change to cut the number of hours of debate that Democrats can insist on, from 30 to 8. Meanwhile, Democratic input over judges is declining as Republicans sometimes ignore the “blue slip” process that calls for home state senators to approve judicial nominees.

If they are back in control next year, Democrats are sure to consider cutting off the judicial pipeline in case they win the White House in 2020.

“Mitch McConnell now tries to take advantage of all that delay he created and those spaces,” said Sen. Cory Booker (D-N.J.). “I don’t know if they’re going to regret this come five years from now.”

The simple majority threshold and lack of bipartisan input has translated to lower quality nominees, according to critics. The White House has given GOP senators more latitude than usual in proposing district court nominees and several have embarrassed themselves in confirmation hearings and ultimately withdrawn.

“It’s their highest priority,” said Senate Minority Whip Dick Durbin (D-Ill.). “They want to put Federalist Society extremist judges by and large into lifetime appointments. They think they can change the face of America.”

On Thursday before the Senate left town, McConnell quietly set up votes on another Circuit Court nominee: the 15th of this Congress. So if it looks like the Senate is twiddling its thumbs next week, there’s a good chance the majority leader is actually looking to fill another vacant court seat for a generation.

“It is a very high priority for Sen. McConnell,” said Sen. Lamar Alexander (R-Tenn.), perhaps the GOP leader’s closest friend in the Senate. “When Democrats are slowing down all nominations and Sen. McConnell has to use most of the week to do one nomination, he’s going to pick a circuit judge almost every time.”

As a political move, of course, this makes sense for Republicans. Thanks to last December’s loss of the seat formerly held by Jeff Sessions in Alabama, the Republican majority is down to the razor-thin margin of 51-49, and with Senator John McCain in Arizona for the foreseeable future, that means that accomplishing much of anything else in the Senate without Vice-President Pence’s tie-breaking vote will be difficult if not impossible. Confirming Republican judicial nominees is the one thing that keeps the Republican caucus united, and even if it means that Pence will have to stay in town to cast tie-breaking votes as long as McCain is unavailable to vote, getting those nominees through is the one thing that Senate Republicans can do that they will be able to point to as a legislative success as we head into a primary and General Election season that will require an energized, united Republican base turnout to counter Democratic and Democratic-leaning voters that, based on all the available polling, are currently much more motivated than Republicans to vote this coming November. Putting the issue of judicial nominees on the table is perhaps the one thing that can motivate Republicans who might otherwise be demoralized to get out to the polls.

All of this could become more relevant later in the year, of course, depending on what happens with respect to any potential Supreme Court retirements. As was the case at this time last year, all eyes will likely be on Associate Justice Anthony Kennedy as we get closer to the end of the current Court term. One year ago, for example, Chuck Grassley, the Chairman of the Judiciary Committee dropped hints of a potential retirement at the end of the term. Grassley didn’t mention Kennedy by name, but the fact that Kennedy, now the longest-serving member on the Court, might decide to step aside now that there was a Republican in the White House and a Republican-controlled Senate made it fairly easy to deduce who it was Grassley was speculating about. The speculation around Kennedy picked up again as the final days of the term got closer in June. At least part of that speculation was driven by the fact that nearly all of Kennedy’s former law clerks were coming to Washington to participate in a reunion that Kennedy holds every couple of years. As I noted at the time that Grassley made his remarks and again in the last days of the term, one major signal that Kennedy would not retire could be found in the fact that Kennedy had hired a full slate of law clerks for the upcoming October 2017 Term as had all of the other Justices on the Court. While this isn’t necessarily a dead giveaway that a Justice isn’t retiring, it is a strong sign that they’re planning on being around for the new term.

In the end, of course, there was no retirement at the end of the term by Kennedy or anyone else. Several days after the end of the June term, though, it was reported that Kennedy was advising law clerks he was interviewing for the term that begins in October 2018 that he could decide to retire at the end of October 2017 Term, which means that if they were hired they would end up being reassigned to other Justices, or potentially to whoever might be appointed and confirmed to replace him. Most recently, Nevada Senator Dean Heller speculated that we could see a Kennedy retirement in June, but as I noted at the time it’s clear that his speculation wasn’t based on anything more than the same speculation we’ve seen swirling around Kennedy since this time last year. There will no doubt be more speculation about Justice Kennedy’s intentions as we get closer to June. In that regard, it’s once again worth noting that Kennedy has once again hired a full slate of clerks for the October 2018 Term, so that could be an indication that he’s staying around for the time being notwithstanding the fact that the GOP could lose control of the Senate in November. On the other hand, as I’ve said before, this “hiring watch” has sometimes been an unreliable predictor of judicial intentions in the past.

So, it’s possible that Kennedy will retire at the end of the term, or it’s possible that he won’t. We won’t really know until there is (or isn’t) announcement. Additionally, it’s possible that another Justice could decide to step aside. Of the older Justices, Ruth Bader Ginsburg has made it clear that she has no intention of stepping down any time soon, and it also seems unlikely that Justice Stephen Breyer will step aside either. There has been some speculation in the past, though, that Justice Thomas, who has been on the Court only a few years less than Kennedy, could decide to retire while he’s still relatively healthy and the Republicans are in control of Washington. These are just rumors, though, and there have been far fewer rumors about Thomas than there have about Kennedy. If there is a Supreme Court retirement this year, though, then you can look for Republicans in the Senate to move quickly to get whoever President Trump names as a replacement through the Judiciary Committee, and through the Senate, prior to the November elections. Democrats would have some ability to slow that process down somewhat, but there’s nothing they can to do stop it as long as they are in the minority.

FILED UNDER: Congress, Donald Trump, Law and the Courts, Politicians, Supreme Court, US Politics, , , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. OzarkHillbilly says:

    “Kennedy might retire.” Hint, hint, hint.




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  2. Kathy says:

    If the Democrats flip the Senate, and there is a SCOTUS retirement after the next Congress convenes, can they hold up a Trump nominee for two years?

    We know the Orange Clown will Tweet bloody murder when they don’t approve funding for his wall. Imagine if they decide not to vote on his Supreme court pick?

    BTW, has anyone noticed Dennison criticizes his own picks, be they cabinet or judicial or WH staff, than the Democrats?




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  3. OzarkHillbilly says:

    @Kathy: I don’t see why not. McConnell used the excuse that an election was coming up. Seeing as there is always an election coming up, DEMs can say the same. They made their bed, let the GOP whine about having to lay in it.

    Or they could just bork any one trump nominates.




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  4. An Interested Party says:

    Awfully rich of McConnell to try to jam through as many nominees as he can considering what he did with Merrick Garland…if the Dems take the Senate in the fall they shouldn’t hold votes for any of the Orange Freak’s nominees…




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  5. de stijl says:

    @Kathy:

    If the Democrats flip the Senate, and there is a SCOTUS retirement after the next Congress convenes, can they hold up a Trump nominee for two years?

    The precedent has been set. And, frankly, they’d be fools not to after what McConnell did.




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  6. Kathy says:

    @de stijl:

    From a partisan divide perspective, they’d be Trump-grade morons not to do so.

    From a perspective of preserving norms, it’s not so clear.




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  7. OzarkHillbilly says:

    @Kathy: Can’t preserve a norm that was shot, burned, and thrown out the window. If the GOP wants to go back to the way things were, maybe a law can be passed. Of course DEMs should feel no need to surrender this new norm just because the GOP is crying about it. Maybe they should only do it under the circumstance that Gorsuch resigns and a DEM nominates his successor.




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  8. Kathy says:

    @OzarkHillbilly:

    I’m thinking of the norm that the other party is not the enemy of the state, and its partisans are not criminals.




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  9. Just 'nutha ig'nint cracker says:

    @Kathy: I’m not sure where you’re getting the idea that ” the other party is not the enemy of the state, and its partisans are not criminals” represents a norm. I’m not sure that it’s was still a norm when Clinton was elected in 92 anymore, and that’s a generation ago.




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  10. teve tory says:

    From a partisan divide perspective, they’d be Trump-grade morons not to do so.

    From a perspective of preserving norms, it’s not so clear.

    From the point of view of game theory the Democrats need to extract a cost for what McConnell did. Concern about norms in this case is obviated by the fact that in no case will Dems’ unilaterally following norms shame republicans into doing the same.




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  11. Kathy says:

    @teve tory:

    They could stand on McConnell’s precedent to the extent of saying “We won’t hold a vote for this candidate. We’d gladly consider another.” Lather, rinse, repeat as needed, until Trump gets it through his head and nominates a more moderate judge who may serve as a swing vote (which we know won’t ever happen without approval from “Fox & Friends.”)




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  12. KM says:

    @Kathy:

    From a perspective of preserving norms, it’s not so clear.

    Except what norm is being persevered? Think of it like a parent who caves to one child but doesn’t to another in incredibly similar circumstances because they want to persevere the norm that the parent is the ultimate authority. That’s *not* the lesson the children learn however – what they get out of that is Johnny can do what he wants but Bill’s held to “rules”. The norm that’s really being persevered in that case is “rules for thee, not for me”.

    Your suggestion is laudable in that you think you are returning to a state of cooperation and non-hostility between partisans. However, like the parent in the example, what you believe you are promoting is not what’s going to come across to the intended audience. The more Johnny freely gets away with crap, the more resentful Bill grows of being held to “unfair rules”. Eventually Bill snaps and decides he’s going to either act like Johnny (because WTF not?) or just move away from what is imposing the rules (abandonment of the norms). Meanwhile Johnny’s still wrecking the place and the good kid doesn’t want to be good anymore, all because the parent decided to enforce norms on the ones *not* violating them in the first place.




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  13. Kathy says:

    @KM:

    Where does it stop? When there are no norms left, or when one party, or one person, has all the power and sets all the rules at whim?

    When you find yourself trapped in a hole, you should stop digging.

    The purpose of a political party is to rule the country well, not to beat the other party. A good policy is good on its own merits, and does not depend on who proposes it. But you can’t rule well or implement good policies if your goal is to make the other party lose.




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  14. al-Ameda says:

    @Kathy:

    If the Democrats flip the Senate, and there is a SCOTUS retirement after the next Congress convenes, can they hold up a Trump nominee for two years?

    I believe the ‘McConnell Rule’ is in effect now.
    So yes, 2 years seems reasonable.




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