In the wake of a bruising defeat over Supreme Court Justice Brett Kavanaugh, Democrats agreed to approve another 15 Trump-nominated judges on Thursday to allow vulnerable red-state lawmakers to return home and campaign, Politico’s Burgess Everett reports.
Senate reaches deal on confirming 15 judges (3 Circuit, 12 District) as price for Democrats to go home and campaign— Burgess Everett (@burgessev) October 11, 2018
As a senior Democratic aide told Vox, many of these judges had bipartisan support and were expected to get through anyway. By finagling this deal, Minority Leader Chuck Schumer and other Democrats are freeing up lawmakers to capitalize on this time in advance of the midterms.
Progressive activists aren’t having it, though.
Shortly after the deal was announced, Chris Kang, the chief counsel for activist group Demand Justice, noted that red-state Democrats have always had the option to go back home and campaign, even if it means that they would have to miss a few votes.
Any Democrat who wanted to go home and campaign could have without Schumer agreeing to give away our judiciary. https://t.co/rhwSxhdjAK— Chris Kang (@cdkang76) October 11, 2018
Kang is right in that nothing is stopping Democrats from missing a few votes. If they do, however, they run the risk of getting called out for shirking their responsibilities. As senators who are already on tenuous ground, their absence from the chamber could serve as additional fodder for Republican attacks — though it’s unclear how much impact those would actually have on voters.
Knowing the thorny Catch-22 that many Democrats are in, Senate Majority Leader Mitch McConnell has previously hinted at plans to keep lawmakers in DC to weigh judicial nominees, Politico reports.
“I need to be home, that’s what I’m going to tell you. I’m going to evaluate what these votes are,” said Sen. Heidi Heitkamp (ND), an endangered Democratic incumbent, told Politico before the deal was announced. According to the publication, Elizabeth Warren (D-MA) was the only senator in the caucus to oppose the latest deal on judges.
Democrats’ latest move confused many activists who were still reeling from the party’s painful Kavanaugh defeat. Demand Justice’s Brian Fallon told Splinter’s Libby Watson that there was definitely a way for Democrats to hit the trail while ensuring that the party still put up a fight on outstanding judicial nominees.
“The easy solution here is that the red state Democrats skip town to go home and campaign if they want, but the rest of the caucus keeps the Senate in session to slow down Trump’s judges,” he said. “Let Chris Van Hollen and Mark Warner hold down the fort in DC while Joe Donnelly stumps in Indiana.”
This isn’t the first time a deal on judges has raised progressive ire
If all of this back and forth sounds familiar, that’s because it is. In late August, a very similar agreement was brokered by Senate leadership that also included what was, effectively, a blanket fast-tracking of 15 federal judges. At the time, activists suggested that Democrats’ decision to give in to such nominations was a sign of weakness that was especially troubling going into the Kavanaugh fight.
Following the last deal, Adam Jentleson, a former deputy chief of staff for Sen. Harry Reid, had argued there were procedural ways to delay these nominations that might not ultimately block them, but could, at the very least, signal Democratic opposition.
The Democratic aide noted that even if lawmakers put up a fight, the “end result would be the same” and it would have cost the party “valuable time to campaign and actually win elections.” As Politico reports, Democrats could have kept a small group of lawmakers in Washington to hold votes on these nominees while others went to campaign, but it’s an approach that the minority rarely uses.
Post-Kavanaugh, activists seem even more disheartened that Democrats haven’t made efforts to stage additional resistance to a broader Republican effort to remake the federal judiciary.
“Turning the Senate into a rubber stamp for Trump’s takeover of our courts is appalling,” said Vanita Gupta, president of the Leadership Conference on Civil and Human Rights.
“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 Kang in a statement. “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. The progressive grassroots have awoken to the crisis of Trump’s takeover of the courts and are not going to tolerate this kind of weakness for much longer.”