/Senate to Focus on Judicial Confirmations Once Chamber Returns in May

Senate to Focus on Judicial Confirmations Once Chamber Returns in May

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

The New York Times editorial board today lamented the Trump administration’s focus on enacting longstanding conservative goals during the COVID-19 pandemic in Trump: Why Waste a Crisis?

What did they expect?

Trump has his eye on the November prize, while the Grey Lady  instead accedes to the Democratic National Committee’s crafty plan to place all its eggs in the Joe Biden basket.

Trump, by contrast, is doubling down on measures that will either fire up his base, or appeal to its corporate funders, or both. Such as reshaping immigration law (as I wrote about here); rolling back environmental regulations (such as they are); bailing out the oil and gas industry (as DeSmogBlog discusses here); and confirming federal judges.

As The Hill tells the story:

In a Tuesday interview with radio host Hugh Hewitt, Senate Majority leader Mitch McConnell emphasised that judicial confirmations will be a top priority once the Senate returns to session in May,

As soon as we get back in session, we’ll start confirming judges again. We need to have hearings, and we need to confirm judges. … The pandemic will not prevent us from achieving that goal,” McConnell said.

The GOP leader views judicial nominations, particularly influential circuit court picks, as his top priority when scheduling floor time and has called them the party’s best shot at having a long-term influence on the direction of the country.

As I’ve written before, the Trump administration has taken a systematic approach to judicial confirmations, maintaining a laser focus – one which will prove to be a longstanding legacy,, as Article 3 federal judges enjoy lifelong tenure (see here, here, and here).

Over to The Hill again:

Republicans have raced to confirm Trump’s judicial nominees, setting a record for the pace of confirming appeals court judges. The Senate has confirmed a total of 193 judicial nominations since Trump took office, including two Supreme Court picks and 51 appeals judges.

The total is the second fastest overall confirmation pace of any U.S. president, according to the Article III Project, a conservative group that works to confirm Trump’s judicial nominees.

Now, part of the reason Trump had so many positions to fill is that beginning in 2014, the Republican majority successfully frustrated his predecessor’s attempts to confirm and seat federal judges, as discussed in this Brookings account, Senate obstructionism handed a raft of judicial vacancies to Trump—what has he done with them? Less often discussed is the last Democratic administration was slow off the mark in trying to seat federal judges starting in 2009, when the party enjoyed a comfortable 60 majority in the Senate.

And unlike his predecessor – who managed to botch his final Supreme Court pick, nominating Merrick Garland, a jurist who inspired no enthusiasm from Democrats, while failing to attract Republican support, the Trump administration is proceeding full speed ahead, damn the torpedoes with ultra-conservative nominees, such as seeking to elevate U.S. District Judge Justin Walker to the U.S. Court of Appeals for the D.C. Circuit and Mississippi Court of Appeals Judge Cory Wilson to the U.S. Court of Appeals for the Fifth Circuit, according to Common Dreams.

Permit me to repeat at length what I wrote about that Garland nomination in a 2016:post entitled Doing Time: Prison, Law Schools, and the Membership of the US Supreme Court

I was thinking about Obama’s stalled Supreme Court nomination of Merrick Garland the other day, and that conference in South Africa came to mind. And my memory of that made me realize exactly what I think was so wrong in Obama’s choice of Garland as his nominee for former Justice Antonin Scalia’s old seat– and in fact, in a wider sense, what’s missing from political debates about who should serve on the Court.

Obama often seems to be shadowboxing with himself, and his pathological– and somewhat naive, IMHO insistence on bipartisanship– caused him to stumble badly in making this nomination.

And not that I make that statement, I’m not viewing the appointment through the lens of identity politics that is common for assessing such appointments. When considering Supreme Court justices– all of whom usually share common elements of background and similar experience– we tend to use aspects of identity as a proxy for experience.

Our current Supreme Court membership lacks any of the breadth of experience (not to mention any progressive sensibility) that characterized former members of the Court (with perhaps the exception of Justice Ruth Bader Ginsburg, who successfully litigated several important gender rights cases). But where is our Louis Brandeis– the so-called People’s Lawyer, who pioneered the use of science, and social science, in his “Brandeis brief”, and frequently acted on behalf of progressive legal causes that challenged monopolies and corporations and litigated aspects of workplace safety and pro-labor laws? And how about Thurgood Marshall, who successfully argued many cases key civil rights cases, the most famous being Brown v. Board of Education.

Merrick Garland is obviously intellectually able enough to serve on the Court (but more on that in a moment). He did, after all, graduate at the top of his Harvard College class before moving on to Harvard Law School. But at 63, he’s too old, too bland, too typical of the current mode of US Supreme Court justices, to be an apt choice for the position. Now, by too old, I don’t mean to imply he’s too old intellectually. But Presidents get very few chances to shape the membership of the Supreme Court, and Obama should have opted for someone younger, who would be expected to serve a longer term.

Democrats obviously thought that the failure of the Senate to confirm Garland’s nomination– despite more or less bending over backwards to select a nominee even Republicans could love– would cause outrage on the campaign trail.

Well, guess what, according to Politico, it hasn’t:

From Pennsylvania to New Hampshire to Arizona, Senate Democratic candidates repeatedly hammered Senate Republicans for essentially ignoring Garland’s nomination with a “Do Your Job” message they figured would resonate with swing voters. During well-publicized recess events, activists hounded GOP senators back in their home states.


“I heard almost nothing about it,” said Missouri Sen. Roy Blunt, who is in an unexpectedly tough reelection bid against Democrat Jason Kander. “I saw thousands of people. We did 106 events that involved lots of people and I think in passing, one person mentioned Merrick Garland.”

Obama seemed to be interested in chalking up a win, and didn’t really think through exactly what he would be winning.

If Obama had made a less anodyne choice, he could perhaps have galvanised some element of the Democratic party’s base to press for confirmation. But no one seems ready to agitate for Garland’s confirmation. Voters simply do not seem to care about the empty Supreme Court seat, especially when compared to other ore pressing issues. In the context of a discussion of an ongoing Senate race, GOP strategist Scott Jennings, who ran a super PAC backing McConnell in 2014. said, “The idea that voters were going to make a Supreme Court vacancy a more important issue in a Senate race than say jobs or health care was ludicrous the day it was hatched,” again according to Politico.

Chalking Up Wins AND getting the Candidates it Wants

By contrast, the Trump administration did not fumble the opportunity that it was handed. And, as The Hill discusses, Republicans are looking even more widely to make sure that they maximise their number of judicial picks:

McConnell and his colleagues have been encouraging some federal judges appointed by Republican presidents to retire this year in order to ensure that their seats will be filled by ideological allies, The New York Times reported last month.

McConnell on Tuesday appeared open to Hewitt’s suggestion that a federal judge could say they are going to retire but only if their replacement is confirmed by the end of the year. Control of the Senate is up for grabs in the November elections as Democrats try to take back the majority starting in 2021.

“I could be wrong, but I think that’s been done before, that retirements have been announced contingent upon replacement,” McConnell said. “I’m not certain about that, but that’s a good way to, that’s something worth taking a look at.”

What’s At Stake?

Well, as Common Dreams summarizes:

Civil rights groups decried Trump’s nomination of Walker and Wilson as another step toward packing the federal courts with “right-wing ideologues” hostile to reproductive rights, workers, and the environment.

Trump, with the help of McConnell and the right-wing Federalist Society, has now hand-picked around one in every five U.S. federal judges. Because Trump’s selections have been disproportionately young, they will have the power to reshape American law for decades to come.

Republicans, particularly the leadership, know what they want,  We shouldn’t fault them for pursing their priorities.

What we should instead think about is setting alternative judicial priorities, and filling seats, the next time Democrats get the chance.

That extends to confirming judges who wouldn’t be acceptable to Republicans.

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