Senate Majority Leader Mitch McConnell, R-Ky., kept the Senate in session this month with two goals in mind. First, he wanted to prevent vulnerable Democrats from getting out on the campaign trail. The longer they’re stuck in Washington, the less time they have to defend their records back home.
Second, he wanted to keep the judicial confirmations rolling, in spite of ongoing Democratic obstruction. Senate Minority Leader Chuck Schumer, D-N.Y., has been resourceful in using every possible tool to delay hearings and votes for as long as possible.
It isn’t hard to see why. Democrats are in a struggle for ideological survival, and it’s nobody’s fault but their own.
With their decision to invoke the “nuclear option” in November 2013, abolishing Senate filibusters against the confirmation of lower court judges, they actually did President Barack Obama little good. Yes, he was able to move a small number of appointees who were being blocked, but he had only a year after that to appoint judges before Republicans retook the Senate.
Beginning in 2015, McConnell shut Obama down as a means of punishing Senate Democrats’ nuclear stunt. The result was that Obama was only able to appoint the same number — almost the exact same number — of lower court judges as President George W. Bush had appointed.
Thus, although the nuclear option detonated three years before President Trump’s election, he is the first president who will truly benefit from it. He has a unique opportunity here that is a much bigger deal than many people realize — provided that conservatives get out and vote and Republicans keep the Senate this November.
With 24 confirmations so far, Trump is already setting a record pace in filling up the circuit courts of appeals — Obama only got to appoint 55 circuit court judges in his eight years. And the circuit courts decide the vast majority of the nation’s most controversial cases.
With the Senate’s help, Trump also has the opportunity going forward to fill the 180 current and future vacancies in the lower courts (20 of these are additional circuit court nominations), in addition to the many more seats that will open up as judges retire or pass away during the remainder of his presidency.
Although future presidents will have the same power to appoint and confirm with a simple Senate majority, Trump has a leg up on all of them. Here’s why: Like all Republican presidents, he will appoint judges who are less likely to retire when Democrats are serving as president. But because he is the first president in modern times to fill vacancies at the new, faster rate that the nuclear option allows, he will be effectively Democrat-proofing a larger portion of the judiciary than any of his Republican predecessors could have done.
A successful Trump presidency could thus significantly and for many years reduce the sort of goofy outcome-based reasoning on the courts that conservatives have long hated. It means that a greater share of the 874 judges in the federal judiciary will stick to interpreting the written and common law and the Constitution in their reasoning, rather than imposing arbitrary tests and rules and making up new rights on the spot in order to produce a specific outcome in a given case.
However, Republican efforts to restore the judiciary to sanity and the rule of law depend on conservatives getting out and voting this fall. If Republicans lose control of the Senate, Trump will have to spend the two years that follow cutting deals with Democrats to fill judicial vacancies — something he might end up all too willing to do. He may be forced to appoint several liberals to satisfy them. And if he refuses, they may even simply decide not to confirm any of his judges at all, as payback for Republicans blocking Merrick Garland.
For Republicans who support Trump wholeheartedly, the need to help his party maintain congressional power should be obvious. But even for those Republicans who have never warmed to Trump, and perhaps voted for him only with the deepest reluctance if at all. For them, the so-called “But Judges” argument from 2016 applies much more clearly to a 2018 Senate race than it did to Trump’s election.
A Republican Senate majority after the coming midterm elections guarantees continued progress in pulling the judiciary back from an era of legal wackiness, grounding it once again in logic and law.
