Republicans have hung on to their Senate majority, which means Mitch McConnell can spend the next two years jamming through as many judicial nominees as possible.
It’s a plan he hasn’t been shy about.
“You know what my top priority is? It’s the judiciary,” he said during a press conference last week, while outlining upcoming priorities. “We intend to keep confirming as many as we possibly can as long as we can do it.”
The Senate’s approval of judicial nominees is one rare issue on which the Republican conference has been able to remain united. With the narrow majority they’ve had, the party has needed every Republican vote in order to move pretty much anything — but with a handful of troublesome Republicans gone and the potential expansion of their majority as Florida and Mississippi’s Senate seats get resolved, confirming more judges should only get easier for them.
Democrats say they’ve done their best to capitalize on procedural tactics and other strategies in order to block nominees, but at least one progressive activist thinks there’s plenty of room for them to be more aggressive. Brian Fallon, the head of Demand Justice — an activist group that was vocal in opposing Brett Kavanaugh — thinks Democrats need to stop making deals with Republicans when it comes to approving judicial nominees in bulk, for starters. (Democrats had previously signed on to two deals that enabled Republicans to fast-track 15 judicial nominees as a package.)
“The act of continuing to grant consent for huge packages of nominees allows McConnell in the aggregate to plow through more nominations than he otherwise could,” Fallon says, adding that Democrats also have the opportunity to use more of the leverage they have on issues like funding legislation in order to obstruct questionable nominees.
Given Republicans’ continued dominance in the upper chamber, however, Democrats only have so many limited options.
Republicans have changed Senate rules and norms, making it easier to confirm their picks
A big reason Republicans are now able to barrel through with their nominees is changes to Senate rules (a process that Democrats kick-started).
Tweaks to the Senate’s filibuster rules — shifts that were initiated by then-Majority Leader Harry Reid after Republicans refused to let President Obama’s judicial nominees through — along with the erosion of other informal congressional checks have rendered Democrats increasingly powerless to express their opposition. Today, Republicans only need a simple majority (50 votes plus Vice President Mike Pence as a tiebreaker) to move through their nominations.
And they’ve been more than happy to take advantage of this.
As of September, the Senate had confirmed the most circuit judges that have been approved by this time in a president’s first term, according to a Washington Post analysis. Meanwhile, Trump has lagged behind other presidents — excluding Obama — when it comes to confirmations of lower district court nominees.
Circuit and district court judges are federal appointees. Circuit court judges sit on the second-highest federal court in the US, following the Supreme Court. They handle appeals on different cases within their jurisdiction, while district court judges focus on trials. There are 13 circuit courts across the country, and 94 district courts.
On average, the nominees that Trump has offered up are younger, whiter, and more male than those previously appointed by Obama.
Due to all the updates in rules and norms, there’s little Democrats can do to stop this.
“At this point, if the majority would proceed with the nominee, there’s not a ton that we in the minority can do to stop it if they align behind it,” one Senate Judiciary Committee aide told Vox.
Kavanaugh’s confirmation process offered a prime example of how much norms have shifted.
In the past, both parties have worked together to request documents from a Supreme Court nominee’s record, for example. In Kavanaugh’s case, however, the majority opted to unilaterally request the documents they were looking for and then bypassed the National Archives to do a parallel, expedited document review led by someone who had served as a personal attorney for President George W. Bush.
“It’s a sad state of affairs that for the first time, Chairman [Chuck] Grassley has decided to go it alone and take a partisan approach, producing the most minimal amount of documents for the public,” Sen. Dianne Feinstein said at the time.
In October, Republicans sped ahead with confirmation hearings for multiple judicial nominees, even though the majority of senators were out of town and Democrats had asked explicitly to reschedule. On different nominations, Democrats have said that Republicans are rushing these nominees through so fast that some have not received evaluations from the American Bar Association — usually a key vetting criterion — by the time their hearings roll around.
What’s more, Grassley, the Judiciary Committee chair, has also signaled a weakening of “blue slips,” one of the ways lawmakers in the minority have previously been able to express their concerns about different nominees.
A spokesperson for Grassley says that prior judiciary chairs have used their discretion to determine how blue slips are interpreted and notes that many of them did not consider them definitive blocks on nominees.
These are just some examples of how the majority can do pretty much whatever it wants, Democrats say.
Democrats do have the power to cause delays — and they’re using some of it
Democrats are pretty hamstrung, but they aren’t completely powerless. They are able to delay the consideration of judicial nominees both in committee and on the floor, though these tactics aren’t able to fully block anyone from confirmation.
They can, however, potentially limit the number of judges who are ultimately confirmed by slowing down the broader confirmation process. “The Senate is all about the calendar,” says Jim Manley, a former communications adviser for Harry Reid. If judicial nominees aren’t confirmed by the end of the congressional term, for example, they can either be re-nominated by the White House to be considered again in the new term or they could be dropped.
Democrats have already used some of these approaches. Because the Senate requires “unanimous consent,” or the agreement of all senators to proceed with its daily business, Democrats can take turns withholding their approval for various steps — including voice votes on nominees.
If even one Democrat declines to vote on a nominee when the majority decides to do so, lawmakers are able to force a procedural vote to set up 30 hours of debate before a final vote can take place. Nominations can take up to four days to clear as a result of this process.
Adam Jentleson, a former deputy chief of staff for Reid, outlined just how this tactic works in a Washington Post op-ed this past January:
If a single senator objects to a consent agreement, McConnell, now majority leader, will be forced to resort to time-consuming procedural steps through the cloture process, which takes four days to confirm nominees and seven days to advance any piece of legislation — and that’s without amendment votes, each of which can be subjected to a several-day cloture process as well.
As of April, about one in four Trump nominees had been subject to this extra procedural step, and Trump had already lambasted these delays as obstructionist. Jentleson, in his op-ed, argues that this tactic could potentially be used by Democrats even more — although he notes there are strategic reasons why they wouldn’t be.
“If Democrats withhold consent from everything the Senate does until such a process is established, they can stall Trump’s agenda and confirmation of his nominees indefinitely,” he writes, adding, “The kind of universal obstruction pioneered by McConnell during Obama’s presidency is not in Democrats’ nature: They believe in the smooth functioning of government.”
Democrats could also deny quorums at committee meetings by refusing to show up, says Manley — a way to prevent committee votes from happening and nominees from advancing in the process. He notes, however, that McConnell could ultimately overcome and wait out all these efforts. As a result, they should only be deployed when necessary, he says — or else they could completely inhibit the Senate from working at all.
Grinding the Senate to a halt could certainly send a message, but it could also cause irreparable damage to how the body functions. “McConnell, if he wants, can break any logjam,” Manley emphasizes.
Activists argue that Democrats shouldn’t make any more deals on judges
While Democrats note that they’re using pretty much everything at their disposal to stop the wave of judicial nominees, some progressive activists argued that they could have done more when it came to two recent deals.
In August, Democrats struck an agreement with Republicans that included the fast-tracking of 15 Trump-nominated judges, so vulnerable red-state lawmakers could return home and campaign. In October, they made another deal that basically accomplished the same thing.
Groups including MoveOn and Demand Justice, both of which were active in the fight to block Kavanaugh, were furious.
“This deal … is a bitter pill to swallow so soon after the Kavanaugh fight that so many progressive activists poured their hearts and souls into,” said Demand Justice’s Chris Kang following the October agreement. “This period will be long remembered not just for the historic number of judges Trump has been able to confirm, but also because of how passive Democrats were in response.”
A senior Senate Democratic aide said that on both occasions, many of these judges had bipartisan support. The aide also said that the October deal minimized the number of judges who could have been confirmed ahead of the midterms. Additionally, it could have helped ensure that red-state lawmakers weren’t penalized by their decision to skip out on votes. (Democrats’ most endangered red-staters, Sens. Joe Donnelly, Claire McCaskill, and Heidi Heitkamp, lost anyway.)
Demand Justice’s Fallon emphasizes that Democrats should stop taking any such deals in the future — especially since 2019 is not an election year. He notes that Democrats need to be clear that they’ll be willing to disregard blue slips and jam through their own judges when they take back power in the White House and the Senate. Drawing a line in the sand could have a “chilling effect” on how freewheeling Republicans have been with these kinds of moves, Fallon says.
Democrats could very well face another decision on a judicial nominees deal later this year, as the end-of-the-year holidays approach. McConnell has emphasized that he’s willing to keep confirming nominees as late as Christmas Eve, and he could potentially hold senators’ ability to return home for holiday breaks as a point of leverage over Democrats.
It’s up to Democrats not to blink, Fallon says. “The reality is in most of these circumstances, McConnell is relying on the Democrats [to cave],” he told Vox. “He doesn’t actually have what it takes to keep the chamber open.”
Democrats say they are aware of this outcry and note that they are constantly weighing what forms of opposition are most effective. In some instances, like the case of Ryan Bounds — a Ninth Circuit nominee who was withdrawn over concerns about his past racist writings — they’ve succeeded in highlighting the nominee’s biases and lack of qualifications as a way to sink him or her.
“I know that our ranking member and our leader talk a lot about options that are procedurally realistic. We are not blind to the backlash,” the Judiciary aide noted.
The influx of Trump’s judicial picks has the potential to shift the federal judiciary much further to the right — and have a lasting impact on everything from environmental protections to campaign finance reform. This judicial deluge is yet another instance of Republicans trying to upend existing institutions to favor corporate interests, says Fallon.
Many Democrats emphasize, however, that their only real solution is regaining an advantage in the Senate. “I can’t get over the fact that we can’t control the Senate, so it’s all a moot point,” says Manley.
Without the majority, they only have so many options.