President Donald Trump’s stream of judges is about to become a torrent.
Senate Majority Leader Mitch McConnell and his GOP caucus have long prioritized confirming conservative judges to lifetime appointments. But they’re about to accelerate their ability to unilaterally approve many nominees in dramatic fashion.
The Senate is on track to confirm the 34th Circuit Court judge of Trump’s presidency in the next week and the GOP has three more ready for floor action; that would give Trump roughly 20 percent of the Circuit Court seats in the country after just two years in office. At this rate, McConnell and Trump could leave few, if any, vacancies there for a potential Democratic president in 2021.
Even more alarming for Democrats, the GOP is also preparing to pull the trigger on the “nuclear option” and change Senate rules once again with a simple majority to allow much quicker confirmation of lower court judges in the coming months.
“The committee is working to put [judges] out on the floor and as soon as they come to the floor the leader’s making it a priority to move them,” said Sen. John Thune of South Dakota, McConnell’s top deputy. “It’ll be a high priority for the foreseeable future. I mean, it’s one of the things we can do that we don’t need the House’s help with.”
With the House controlled by Democrats, stocking the judiciary is the most tangible way for Republicans to deliver conservative results during divided government.
It’s not that the Senate GOP has no legislative plans. There’s a budget deal to be had to lift stiff spending caps and an inevitable debt ceiling drama to address. But McConnell’s focus remains squarely on bending the arc of the courts to be more supportive of Trump and future GOP presidents, particularly as the fight over the direction of the country shifts increasingly to the courts.
Though Trump and McConnell have set an impressive pace at the Circuit Court level, they’ve lagged on District Court vacancies. But that is likely to change as Republicans prepare to sideline Democrats and shave debate time from 30 hours to just two hours for those judges and lower-level executive branch nominees.
Trump currently has 128 District Court vacancies to fill, and each one can take multiple days under current rules if any senator demands a delay; if Republicans change the rules, Trump could conceivably fill most of those over the next 20 months.
“What you could witness under Senator McConnell’s leadership is a situation where an incoming president has very, very few open seats to fill,” added Leonard Leo, a conservative legal advocate who frequently advises Republicans on judicial nominations. Still, Democrats say some liberal judges will opt not to retire as long as Trump is president.
In an interview Tuesday, Senate Minority Leader Chuck Schumer (D-N.Y.) outlined a potential compromise to avoid a “nuclear” clash: Reinstate Democrats’ ability to weigh in on home state Circuit Court nominees via the “blue slip” practice in exchange for bipartisan support for shortening debate on Trump nominees.
“My answer to them is restore the blue slips and then maybe we can come to a compromise,” Schumer said, adding that he had spoken to several GOP senators about it. “They’re eroding democracy, they’re eroding bipartisanship and sooner or later, they’ll regret it.”
Republicans scoffed at Schumer’s offer.
“We can get what we need without giving Democratic senators a veto on home-state circuit judges, said Sen. John Cornyn (R-Texas).
Democrats are outraged that Republicans are preparing to change the Senate rules with a party-line vote, as the GOP did to get Supreme Court Justice Neil Gorsuch confirmed and as Democrats did for nominees in 2013.
McConnell “kind of prides himself on being a Senate institutionalist. But what he’s trying to do to the Senate is dramatic and historic,” said Senate Minority Whip Dick Durbin (D-Ill.).
The longtime GOP leader accused Democrats Tuesday of “mindless obstruction” and said he hopes to overhaul the rules under the regular procedure, which requires 67 votes. But McConnell also suggested he’s ready to move forward even if Democrats do not support the change: “In the absence of [bipartisanship], it’s still my desire to try to achieve that.”
Republicans believe they have the required 50 votes for the nuclear option but are hoping to achieve complete caucus unity, which might prove difficult. Sen. Roy Blunt (R-Mo.) could be seen trying to sway Sen. Susan Collins (R-Maine) on the Senate floor on Tuesday during a vote.
Sen. James Lankford (R-Okla.) said McConnell is likely to move soon, but won’t call up the rules change on its own. Instead, he’s likely to set up votes on a nomination and then move to change the rules when and if Democrats resist.
“It suddenly becomes: This is the time to be able to challenge it. I think it’s sooner rather than later. I would anticipate it happens in March,” Lankford said.
Despite Republicans holding a majority in the Senate since the start of the Trump presidency, judicial nominations have not always gone smoothly. The government shutdown last year made it impossible to continue confirmations into the lame duck session and Schumer refused to cut any deals with McConnell on confirming a bipartisan package of judges after the midterm elections.
That means most Republicans feel like they have some catching up to do on judges and unfilled executive nominations.
“The last thing I heard [is] it would take up to 32 years if we continue the current pace and get every one of the Trump nominees completed,” said Sen. Tim Scott (R-S.C.). “You’re forcing the government to work in a dysfunctional way and we don’t need any assistance in that.”
And though the vast majority of Trump’s judicial nominees, including two Supreme Court justices, have been confirmed, there have been several high-profile failures.
Last year, Scott played a key role in killing the nominations of Ryan Bounds and Thomas Farr. Bounds’ nomination failed amid controversial writings on race, while Farr came under scrutiny for his alleged connection to Sen. Jesse Helms’ intimidation campaign against African American voters.
This year, Senate leadership has more of a cushion on judicial nominations with four GOP senators needed to sink a nomination compared with two in the previous one. But that hasn’t prevented nominees from coming under intense scrutiny from Republicans.
Neomi Rao, Trump’s nominee to replace Brett Kavanaugh on the D.C. Circuit, came under fire from GOP Sens. Joni Ernst of Iowa and Josh Hawley of Missouri, for her college writings on date rape and her views on abortion. Kenneth Lee, Trump’s nominee to become a judge on the 9th Circuit, could also face tough questions about his writings on race and affirmative action, sexual assault, as well as AIDS and the LGBTQ community.
Rao appears on track for confirmation; Lee’s nomination has been held up, at least temporarily. But regardless of their fates, the Senate is making sweeping changes to the federal judiciary on a daily basis.
On Tuesday alone, 37-year-old Allison Rushing was confirmed to the 4th Circuit Court and Chad Readler, 46, advanced toward a final vote for the 6th Circuit despite concerns from Collins over his role in supporting a lawsuit to gut Obamacare’s protections for individuals with pre-existing conditions.
“They’re trying to find all kinds of ways to move things through as fast as they possibly can with the least scrutiny possible,” said California Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee. “One thing after another.”
Article originally published on POLITICO Magazine
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