The Senate floor is dark until Oct. 19, but Majority Leader Mitch McConnell is expected to continue his push to confirm judges when lawmakers return as the chamber awaits one of the most consequential picks in President Donald Trump’s tenure: Supreme Court nominee Amy Coney Barrett.
The pipeline of judicial confirmations has flowed steadily across the Senate floor, even though the chamber’s legislative business has largely stagnated. In the next few weeks, the chamber is expected to vote on confirmation of five U.S. District Court nominees and perhaps at least one more before Election Day — Barrett.
The president has appealed to GOP voters by doting on his record of getting conservative judges on federal benches across the United States. Trump claimed at the first presidential debate in Cleveland that “by the end of the first term I will have approximately 300 federal judges and court of appeals judges, 300, and hopefully three great Supreme Court judges — justices.”
McConnell’s blockade of President Barack Obama’s judicial nominees from 2015 through 2016 and the demise of the 60-vote filibuster for nominees has enabled the majority leader to fill most vacancies at will.
But Trump’s boast of 300 judges requires creative math and norm-busting calculations. During Trump’s term, the Senate has confirmed 218 judges to lifetime appointments as of Sept. 30, and there are currently 35 people nominated to fill court vacancies for lifetime appointments.
Even if the Senate manages to confirm all current judicial vacancies, 59 remaining lifetime appointments and five non-lifetime appointments to the U.S. Court of Federal Claims, the total would stand at 282 judges.
Russell Wheeler, president of the Governance Institute and a visiting fellow at the Brookings Institution, said it’s unlikely the number will get to 300 lifetime judges because it’s hard to imagine enough would retire, or take “senior status,” between now and the end of Trump’s first term.
“There’s no way he’s getting to 300, unless 25 more vacancies show up or he starts to change the rules of the game,” Wheeler said.
But even using that imaginative calculation might not be enough to overcome one variable that can’t be changed: time. Wheeler likens it to a sports team that is not mathematically eliminated from the playoffs but has little chance of advancing.
Even counting those nominees, McConnell would need to keep that judicial conveyor belt running, confirming a steady stream of nominees well into the 116th Congress’ lame-duck session.
If the GOP-controlled Senate confirms Barrett to the Supreme Court to replace the late Ruth Bader Ginsburg, Republicans may be able to fill Barrett’s seat on the 7th U.S. Circuit Court of Appeals too. Absent Barrett leaving the appellate level for the high court, there are no circuit court vacancies.
A Barrett confirmation to the Supreme Court would be expected to change the balance on the court for a generation. The jury is still out on whether his nominees on lower courts will add a similar conservative tilt, Wheeler said. About 60 percent of Trump’s appeals court nominees replaced those who were nominated by previous Republican presidents, according to Wheeler.
“If all his 53 appointments had replaced Democratic appointees, that would have made a big difference — but that’s not what happened,” he said.
Senators don’t get much input these days on circuit court judges in their states, but they do on the district level because Senate Judiciary Chairman Lindsey Graham, R-S.C., has said he continues to honor the blue-slip tradition for that level. Home-state senators return the small blue-tinted questionnaires, checked with “approve” or “oppose,” for judges on the district level.
Of the 161 judges confirmed to district courts with lifetime appointments, the most recent have been from states that have at least one Democratic senator. In the earlier part of the Trump administration, most district court judges confirmed were from states with two Republican senators.
In the Oct. 5 session when McConnell got unanimous consent to get a two-week recess after the spate of positive coronavirus tests among Republican senators, Sen. Tim Kaine, D-Va., asked McConnell to extend the recess until after Election Day. McConnell objected to Kaine’s request.
Asked after the session why he did not object to McConnell’s request altogether, Kaine said he “objected and tried to take us out further. But if I had objected to his request … we would have potentially been in this week for the judges.”
Without three self-quarantining senators afflicted with COVID-19, Republicans likely wouldn’t have 51 votes, but Kaine said it was to “just be on the safe side” because Democrats “don’t want to be in any session” where Republicans might be able to confirm judges.