It’s possible the 2022 midterm elections could have gone better for the Democrats, but it’s hard to imagine how.
Not only did they maintain their majority in the Senate (and possibly increased it, depending on the Georgia runoff), they barely lost the House, giving up many fewer seats than predicted. They also flipped multiple state legislative chambers while only losing one governorship. Hopes that the demise of Roe v. Wade and warnings that American democracy is imperiled would sufficiently energize liberals and women to mitigate or even neutralize the usual midterm penalty suffered by the president’s party proved shockingly prophetic. Fed up with soaring prices, fearful about the state of the economy, and soured on President Joe Biden’s leadership as they were, many voters still decided the devil they knew was better than the Republican they didn’t.
VOTERS (AGAIN) DIDN’T BELIEVE THE HYPE
Come January, therefore, Democrats will return to a Washington much more hospitable than expected. True, the Jan. 6 committee will recede into oblivion along with Rep. Liz Cheney’s political career. And Biden will confront a Republican House, however thin its majority, hostile to his agenda and eager to use its oversight powers on his administration the way small boys use magnifying glasses on ants. So he will have a harder time getting things through Congress. But thanks to Republicans’ face-plant in the Senate, what has arguably been the greatest success of his presidency so far won’t be affected at all.
Biden has appointed more judges in his first two years in office than any president since Ronald Reagan. That assembly line is set to keep running. It will have to if Biden and his accomplices, Senate Majority Leader Chuck Schumer (D-NY) and Senate Judiciary Committee Chairman Dick Durbin (D-IL), want to blunt former President Donald Trump’s vaunted transformation of the judiciary, which saw him appoint more than 230 people to the federal bench, including three Supreme Court justices and over 50 appellate judges. They had been doing so, confirming 84 nominees, at a pace exceeding that of Trump at the same point in his presidency.
Biden’s picks have been notable for their personal and professional characteristics. To the delight of progressives, he has eschewed corporate attorneys and former prosecutors in favor of public defenders and civil rights lawyers. He has also named more women and minorities than his predecessors. Most notable in that regard, of course, is Justice Ketanji Brown Jackson, whom Biden tabbed as the first black woman to serve on the Supreme Court.
With a Democratic majority, Biden could feel confident that even die-hard leftist apparatchiks could get through the Senate. And indeed, it has yet to reject any of his choices. Most of his judges received a handful of Republican votes, but even if they hadn’t, Democrats could confirm them by jumping through some procedural hoops. Hence Jennifer Sung, a nominee for the 9th U.S. Circuit Court of Appeals who signed a letter denouncing Justice Brett Kavanaugh, was approved. In a GOP Senate, she would have shared the fate of Dale Ho, a voting rights lawyer for the American Civil Liberties Union nominated to a district court in New York, and Nancy Abudu, a lawyer for the Southern Poverty Law Center selected for the 11th U.S. Circuit Court of Appeals. The nominations of both stalled after tied committee votes because of their records of advocacy and work for organizations that have fiercely criticized conservatives and Republicans.
A GOP Senate wouldn’t confirm the likes of Ho, Abudu, or Sung, but not because their nominations would languish on the floor. Rather, they wouldn’t be confirmed because they wouldn’t be nominated in the first place. There would be no point since Republicans would simply refuse to hold votes for them. Now, however, Biden is free to renominate them, as he will have to make no concessions or accommodations regarding his judicial nominees.
Senate Minority Leader Mitch McConnell (R-KY) may have declined to commit to holding a vote on any Supreme Court nominations if Republicans regained the Senate, but a total blockade of judges was unlikely. Instead, Republicans, according to Sen. John Cornyn (R-TX), intended to use their “leverage to negotiate” picks more amenable to them. In other words, if Biden wanted Republicans to confirm his judges, he would have to nominate judges Republicans would confirm. The result would have been something along the lines of former President Barack Obama’s last two years in office, when the Republican majority approved a mere 20 judges, only two of whom were on the circuit courts, and refused to consider Merrick Garland’s nomination to the Supreme Court.
The dream of derailing Democrats’ judicial express withered in the desert sands of Arizona and Nevada. Biden, Schumer, and Durbin’s efforts to, in Reuters’s words, “nudge the judiciary back leftward and make it more reflective of America’s diversity” will continue unchecked.
Voters’ favorable verdict wasn’t limited to the federal judiciary. Democrats retained control of Michigan’s supreme court, expanded their majority on Illinois’s, and saw conservative challenges to centrist or Democratic incumbents fail in such red states as Kansas, Kentucky, Arkansas, and Montana. At the federal and state levels, Democrats had a good night on the bench.
The only places they didn’t were Ohio and North Carolina. Republicans retained the supreme court of one and flipped that of the other, which will transform the politics of both states, particularly the latter, where the new Republican majority is likely to be unforgiving as it goes about the process of undoing a series of egregious power grabs by the previous Democratic majority. Over the last year, Democrats on the North Carolina Supreme Court ruled that juvenile offenders sentenced to life imprisonment must be eligible for parole after 40 years, held that state legislators can be compelled to increase education spending, seized control of a case on felon disenfranchisement before a Republican-dominated appeals court could rule on it, found in striking down the state’s new congressional and legislative maps that the state constitution effectively mandates proportional representation, and, in its most brazen decision, declared the state legislature may lack the power to amend the state constitution on the grounds that its districts were illegal racial gerrymanders.
Much was made in the closing weeks of the campaign about threats to democracy and the danger of undermining elections. Yet by holding that a duly elected legislature could not exercise its full powers because the way its members were chosen rendered the legislature itself unconstitutional, undermine elections is just what the Democrats on the North Carolina supreme court did, averred Washington Post columnist Jason Willick. Willick is right that “partisan judges” deciding after the fact that legislatures elected according to the rules in place at the time are illegitimate is a thread we shouldn’t want pulled.
Maureen O’Connor, chief justice of the Ohio Supreme Court, did not unravel that thread, but she was no doubt sorely tempted to. O’Connor, a Republican, joined with her three Democratic colleagues to reject the new congressional and legislative districts passed by Republicans in the Ohio legislature as impermissibly favoring the GOP. Half a dozen times, new maps were passed; half a dozen times, O’Connor & Co. threw them out. The impasse grew so intractable that federal judges had to impose a map, choosing one their state counterparts had already tossed.
The map was only good for this cycle, meaning the process of finalizing one for the rest of this decade’s elections and the attendant litigation are still ongoing. The difference is that next year O’Connor will be gone, replaced by one of her Republican colleagues, whom Ohio Gov. Mike DeWine will replace with yet another Republican. Ostensibly, the court will remain a 4-3 GOP majority, but with O’Connor reaching the mandatory retirement age, it will be a more solid one that is sure to adopt the logic of the scathing dissents against her decisions and allow the legislature a much freer hand in designing new maps.
The dissenters in North Carolina were even more furious and are likely to be even more implacable in eradicating the defunct Democratic majority’s handiwork. The losses won’t be felt at just the state level: New congressional maps in Ohio and North Carolina could add as many as seven Republican seats in the House of Representatives, making it that much harder for Democrats to recapture it in 2024.
What has long been true of federal courts is increasingly true of state courts as well: A shift in their partisan balance means a shift in the partisan balance of power in the state. Little wonder, then, that “state supreme court races,” as the New York Times lamented, “emerged this year as crucial battlefields” on which donors and outside groups spent millions. The federal judiciary gets the bulk of the attention, but state courts handle many of the same thorny areas, from voting rights, campaign finance, and gerrymandering to gun rights, criminal justice, and abortion. The Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision returned abortion to the states. Whichever party controls a state’s supreme court, therefore, will have a crucial advantage in determining its abortion laws, including whether abortion will be legal at all.
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On that score, Democrats’ victories in Michigan and Illinois, and Republicans’ failures in Kansas, Kentucky, Montana, and Arkansas, were further boons to Team Blue. The Democratic triumph in Michigan all but guarantees its 1930s law banning abortion will be overturned. Kentucky voters, in addition to defeating a conservative who sought to depose a centrist justice, vetoed a constitutional amendment declaring that the Kentucky Constitution confers no right to abortion. In oral arguments in a case about Kentucky’s heartbeat abortion law, several justices indicated the amendment’s demise would influence their decision on whether to uphold the state’s abortion bans. Even in the Bluegrass State, the red wave broke upon the sea wall of abortion rights, just as it did in much of the country.
Biden’s ability to reshape the courts hung in the balance. The loss of one Senate seat would have crippled it. Instead, he now has carte blanche to continue nominating progressive activists to his heart’s content. Ed Whelan of National Review may be correct that he won’t be able to alter the courts’ ideological balance much. Nonetheless, Republicans’ powerlessness to compel Biden to submit more centrist nominees or, if need be, hold vacancies open for a future GOP president to fill, is a significant defeat for them and a major victory for him.
Varad Mehta is a writer and historian. He lives in the Philadelphia area. Find him on Twitter @varadmehta.
