After G.O.P. Wins, Senate Democrats Eye Major Push to Confirm Biden Judges

by · NY Times

After G.O.P. Wins, Senate Democrats Eye Major Push to Confirm Biden Judges

The loss of the White House and the Senate majority will end Democrats’ ability to fill judicial vacancies come January. They say they want to confirm as many as possible in the coming weeks.

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Senator Chuck Schumer, the New York Democrat and majority leader who has prioritized judicial confirmations, indicated a willingness to devote significant floor time to seating more judges in the post-election session.
Credit...Tierney L. Cross for The New York Times

By Carl Hulse

Reporting from Washington

Senate Democrats are weighing a major push in the coming weeks to confirm as many of President Biden’s judicial nominees as they can in the lame-duck session of Congress, before their power to reshape the federal courts ends with the Republican takeover of the White House and the Senate in January.

Democrats had hoped to hold onto the Senate and the White House, allowing them to continue their drive to counterbalance the 234 conservative-leaning judges — including three Supreme Court justices — who were confirmed during the first Trump administration. But with the re-election of Donald J. Trump and Republicans winning control of the Senate, that possibility is now gone.

Senator Chuck Schumer, the New York Democrat and majority leader who has prioritized judicial confirmations, on Friday indicated a willingness to devote significant Senate floor time to seating more judges in the post-election session that begins next week. About 30 nominees were already in the confirmation pipeline, and Mr. Biden announced two more on Friday night.

“We are going to get as many done as we can,” Mr. Schumer said in a statement.

Progressive groups have ramped up the pressure for them to do so.

“The reality is that we now have a rapidly closing window to confirm well-qualified, fair-minded judges who will protect our rights and serve as one of the last guardrails in upholding our nation’s laws and the Constitution,” Maggie Jo Buchanan, the managing director of the progressive group Demand Justice, said in a statement this week. “Even one judge can make a difference.”

With the clock ticking, some liberal activists are even agitating for Justice Sonia Sotomayor, who at 70 is the senior Democratic-nominated member of the Supreme Court, to step aside and allow Democrats to rush through her replacement. That would be reminiscent of what Republicans did in 2020, when they moved quickly after the death of Justice Ruth Bader Ginsburg to speed through Mr. Trump’s nominee to replace her, Amy Coney Barrett, in the weeks before the election. But there is no indication that Justice Sotomayor would leave the court, and no guarantee that Democrats could succeed in swiftly replacing her if she did.

Before senators left town in September for this year’s election, they confirmed the 213th judge of Mr. Biden’s tenure. But Democrats could confront logistical problems if they try to move forward rapidly with dozens more. They will meet next week to plot their strategy for the final weeks of the Congress, including whether they can succeed in installing a significant number of judges.

Republicans are unlikely to cooperate because they want to hold open as many seats as possible for Mr. Trump to fill. That means Democrats will need every vote they can muster to push through nominees on party-line votes. That may include Senators Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona, independents who are departing but typically voted with Democrats on judicial picks. Mr. Manchin has declared he will not vote for judicial nominees who do not have at least nominal Republican support, though he did make an exception recently.

After their losses, some Democratic senators might also want to wrap up remaining business quickly and move on from Washington as the holidays approach, presenting Mr. Schumer with attendance problems. Some Republican senators are likely to be absent as well, including Vice President-elect JD Vance of Ohio and Mike Braun of Indiana, who was elected governor.

Complicating matters further, not all of the pending nominees have unanimous Democratic support, meaning Democrats and the White House might have to sacrifice some who do not have the necessary backing.

Senator Richard J. Durbin, Democrat of Illinois and the chairman of the Judiciary Committee, who has overseen the confirmation push, wants to approve as many as he can, according to his office.

“Senate Democrats are in a strong position regarding judicial confirmations as we approach the lame-duck session given that we have a number of nominees on the floor ready for a vote, and others still moving through committee,” a spokesperson for Mr. Durbin said. “Chair Durbin aims to confirm every possible nominee before the end of this Congress.”

Senator Mitch McConnell, the Kentucky Republican and minority leader, acknowledged this week that Democrats had the power to focus on judges if they decided to do so. But he also alluded to the fact that the process can be time-consuming, potentially crowding out legislative business.

“The advantage of being the majority leader is you can decide what to bring up,” Mr. McConnell said. “If that’s what the majority leader wants to do, that’s what we will do, and each one will be voted on.”

In the past, the two parties have sometimes struck agreements on consensus nominees at the close of a Congress, approving a number of them in single package. But Mr. McConnell’s remark hinted at the likelihood that with heightened partisanship over nominees and Republicans about to take over, a deal to confirm several judges at once might be hard to come by.

In Mr. Trump’s first term, Mr. McConnell and Donald F. McGahn II, then the White House counsel, made judicial confirmations a top priority as they sought to place scores of conservative-leaning nominees on the nation’s district and appeals courts as well as the Supreme Court, moving them distinctly to the right.

When Democrats took over in 2021, they sought to reduce the influence of the Trump administration conservatives, recognizing that the courts rather than Congress had been deciding some of the major cultural, economic and environmental fights of the moment. Mr. Biden’s nominees were remarkably diverse in personal and professional backgrounds relative to traditional federal court nominees, and almost two-thirds of them were women.

Over the next four years, Mr. Trump could easily have the opportunity to add to the three justices he placed on the Supreme Court during his first term: Justices Neil M. Gorsuch, Brett M. Kavanaugh and Barrett. The three cemented the conservative majority on the court after Republicans blocked President Barack Obama from filling a vacancy in 2016.

Though Mr. McConnell is stepping down from leadership next year, judicial confirmations are likely to remain a top interest for the Trump administration and the Republican-controlled Senate.

Senator Charles E. Grassley of Iowa, 91, is in line to regain the chairmanship of the Judiciary Committee after heading it up for past Supreme Court confirmation fights. One of the Republicans seeking to succeed Mr. McConnell as party leader is Senator John Cornyn of Texas, a senior member of the Judiciary Committee who has been deeply involved in confirmation issues.

“As the nation enters a second Trump presidency there currently are 47 federal judicial vacancies, including five in Texas,” Mr. Cornyn noted on social media this week.

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