The first two years of Donald Trump’s presidency brought a flurry of judicial appointments, reshaping the federal judiciary to the joy of Republicans and consternation of Democrats.
And with Republicans maintaining control of the Senate — and gaining two seats after the midterm elections — while losing the House, it’s the one area of President Trump’s agenda that isn’t expected to slow down.
“The closest thing we will ever have an opportunity to do to have the longest impact on the country is confirming these great men and women and transforming the judiciary for as long as we can,” Senate Majority Leader Mitch McConnell told the audience at The Federalist Society’s Antonin Scalia Memorial Dinner on Thursday.
“And I can guarantee we’re going to keep on doing it for as long as we can,” he continued.
Trump, with the assistance of McConnell, Senate Judiciary Committee Chairman Chuck Grassley and former White House counsel Don McGahn, saw 84 judges confirmed to the federal bench from the start of his administration, a figure that includes two Supreme Court justices.
As the Senate enters the lame-duck session, McConnell vowed to increase that number.
“There will be more confirmed before the end of this term,” he said.
While Republicans have largely cruised through the confirmation process for Trump’s picks, they hit a snag this month when Sen. Jeff Flake, R-Ariz., threatened to oppose Trump’s pending judicial nominees until the Senate votes on his legislation protecting special counsel Robert Mueller.
“I have informed the majority leader that I will not vote to advance any of the 21 judicial nominees pending in the Judiciary Committee or vote to confirm the 32 judges awaiting a confirmation vote on the floor,” Flake said during a speech on the Senate floor.
The Arizona Republican, who is retiring, is one of 11 Republicans on the Senate Judiciary Committee. With 10 Democrats on the panel, opposition from Flake in the committee could force Republicans to move forward with judicial nominees without a favorable vote.
In the full Senate, meanwhile, Republicans currently control 51 seats, and a no vote from Flake would force Vice President Mike Pence to step in as the tie-breaker to confirm the president’s picks.
But Sen. John Barrasso, R-Wyo., the incoming chairman of the Senate Republican Conference, indicated Flake’s threat wouldn’t get in the way of confirmations.
“We are going to fulfill our constitutional responsibility, confirming judges, confirming members of the president’s team. We’re going to do that with or without Jeff Flake,” he told Fox News. “This seems to be his go-to play right now, threatening judges. You know, he did it this past summer on tariffs and trade. Now he’s doing it in terms of the issue of the special counsel. There is no threat to the special counsel. We are going to get these judges confirmed.”
While confirming judicial nominees topped the agenda for the GOP in the 115th Congress, McConnell pledged after the midterms that reshaping the federal bench would remain at the top of the list for the next Congress.
“My goal,” McConnell told The Federalist Society crowd, “is to do everything we can for as long as we can to transform the federal judiciary.”
To confirm the president’s picks during Trump’s first two years, McConnell needed backing from all 51 Republican senators. But with 53 seats in the next Congress — if Republican Rick Scott maintains his lead over Democratic incumbent Sen. Bill Nelson after Florida’s manual recount — Republicans will have more room for error if a nominee garners some opposition from within the party.
“Every additional vote counts,” Carrie Severino, chief counsel of Judicial Crisis Network, a conservative judicial group, said. “It leaves some wiggle room, which is nice to have.”
McGahn, who departed the White House in October, was also considered a key player in the GOP’s efforts to reshape the bench.
During his tenure as White House counsel, McGahn was instrumental with getting Justices Neil Gorsuch and Brett Kavanaugh confirmed to the Supreme Court, as well as more than two dozen nominees to federal circuit courts.
McGahn will be replaced by Pat Cipollone, a Washington commercial lawyer.
Severino said she’s confident Cipollone will help build on McGahn’s success.
“It’s a top priority for the president, and Pat Cipollone is someone who, like Don McGahn, recognizes the significance of judges,” she said. “It’s one of the most long-lasting impacts you can have … This is going to be President Trump’s legacy.”
During Trump’s first two years in office, Democrats used Senate procedures to slow the pace of confirmations. Liberal advocacy groups are urging Senate Democrats to be more aggressive with blocking Trump’s nominees. But Severino said such efforts are likely to be futile.
“If they don’t want to work with the president, that’s fine,” she said. “He’s got a great record of finding excellent nominees so he’ll keep doing it. He’s not going to let the #Resistance get in the way of that.”
