The Republicans’ failure to keep control of the US Senate in yesterday’s midterm elections also ends an era of rapid judicial appointments for President Donald Trump’s party that it has used to reshape the federal courts with conservative judges.
Since Trump returned to the White House last year, he has relied on the Republican-led Senate to easily confirm 56 new, life-tenured judges, adding to the 234 judicial appointments he made during his first four years in office.
But with Democrats now set to hold at least a 54-seat majority in the Senate starting January 3, the White House is poised to lose its path to easy confirmation of judges aligned with its conservative values – let alone to fill potential future vacancies on the US Supreme Court.
“I expect there’ll be a fair amount of Democratic push to not accommodate the kind of people who have been confirmed in Trump 2.0,” said Carl Tobias, a law professor at the University of Richmond who follows judicial nominations.
With the Senate Judiciary Committee’s top Democrat, Dick Durbin of Illinois, set to retire, the panel is set to be chaired by Senator Sheldon Whitehouse of Rhode Island, who has argued that senators have in recent years forfeited too much of their influence over nominations to the executive branch.
Republicans had braced for the possibility of losing control of the chamber, and the committee’s outgoing Republican chair, Chuck Grassley of Iowa, has laid the groundwork for his party to approve as many of Trump’s remaining nominees as possible during the lame duck session before Democrats take power.
Over the objection of Democrats, Grassley last month scheduled two judicial nomination hearings on back-to-back weeks starting November 10, a break from the panel’s typical practice of only holding such hearings once every two weeks.
Doing so would allow the panel to take up nine judicial nominees pending before the committee. Another 13 have already appeared before the committee and could be voted on by the full Senate before Christmas.
“I expect every judicial nominee who has been nominated to date to be confirmed,” Rob Luther, a George Mason University law professor who worked on judicial nominations in the White House Counsel’s Office during Trump’s first term. “And I don’t think they’re going to leave until that happens.”
A White House official said it expects all of the pending judicial nominees to be confirmed this year.
Top priorities for confirmation would likely include four pending nominees to three intermediate appeals courts, including Trump’s two latest picks for the conservative-dominated 5th US Circuit Court of Appeals in New Orleans, US District Judge Anna St John and Phelps Dunbar partner Todd Butler.
But Luther said that once January rolls around, judicial confirmations will slow to a trickle as Democrats prevent Trump from appointing judges to the federal appeals courts or filling any vacancies on the US Supreme Court – which gained its 6-3 conservative majority during his first term.
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