How Senators representing a minority of Americans control judicial appointments
The process of appointing judges (for life) to the federal judiciary is once again in peril—and we, as citizens and voters, would do well to pay it close attention.
First, remember that U.S. Senate majority leader Mitch McConnell (R-KY) refused to allow the U.S. Senate to consider the nomination of Merrick Garland to the Supreme Court after the death of Antonin Scalia in 2016. McConnell’s lame excuse was that the next President should decide on Scalia’s replacement. He staved off the nomination for 293 days until it expired with the seating of the next Congress on January 3, 2017, a delay that more than doubled the previous record delay of 125 days. Then he had the gall to boast that “one of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy.’”
Thanks to the subsequent election of Donald Trump and Republican senators jettisoning the filibuster, Neil Gorsuch replaced Scalia on the bench. Near the very end of Trump’s term in office, on September 18, 2020, Justice Ginsberg died. Regardless of the oncoming presidential election, McConnell went into high gear, pulling out all the stops to get a new justice confirmed. Just 30 days separated Amy Coney Barrett’s nomination from her confirmation. She was seated on the Supreme Court just 7 days before a solid majority of voters rejected the Trump presidency and the Senate changed to a slim Democratic majority. Of course, this speedy confirmation of Barrett before Biden was elected was the precise opposite of McConnell’s justification for robbing Barrak Obama of filling a Supreme Court seat.
McConnell’s slimy, hypocritical power play set up an extreme right wing majority on the Supreme Court, a majority poised to remove from the people of the United States settled rights they had enjoyed for more than half a century. The new Court wasted no time. With the Dobbs decision handed down in June of 2022 the McConnell-engineered reactionary majority on the court struck down Row v. Wade, and with it a woman’s right to bodily autonomy.
But the Supreme Court appointments were just the tip of the iceberg. The Senate Republicans under the Trump administration, while they held a slim majority both in the Senate Judiciary Committee (and the Senate as a whole) rammed through approval of 245 federal judges, most, possibly all, of whom were filtered for Republican idealogical purity by the Federalist Society. In contrast, the Senate has confirmed (as of April 17, 2023) only 119 Biden nominees to the federal bench. There are 38 nominees awaiting confirmation for 101 federal judicial seats (76 that are now open and 25 positions of judges who have announced plans to retire before the end of Biden’s term).
Appointments of ideologues to life long federal judgeships have long ranging consequences. News continues to swirl around Trump-appointed U.S. District Court Judge Matthew Kacsmaryk’s ruling that, if it stands, would upend scientific evaluation of drugs by the FDA, further restrict access to abortion, and rob obstetricians of a valuable pharmacological tool in dealing with the complications of pregnancy—all not on account of the rule of law but as the consequence of Judge Kacsmaryk’s theological convictions. And then there is the legal incompetence of Trump-nominated District Judge Aileen Cannon, the one who twisted herself into legal knots to favor Trump in the Mar-a-Lago classified documents scandal.
Republican U.S. Senate Procedural Blockade
So with 101 federal judicial seats to fill before the end of his first term in 2024 and a Senate majority with which to accomplish it, President Biden’s effort should be smooth-sailing, right? Well, no.
In order for the U.S. Senate as a whole to consider and vote on a nomination of a federal judge, first the nomination has to pass the United States Senate Committee on the Judiciary (aka Senate Judiciary Committee). That committee consists of 11 Democrats and 10 Republicans in this closely divided Senate. Passage requires a majority vote, so if one Democratic member cannot be physically present attempts to advance a nominee to the Senate floor fail in a tie.
Dianne Feinstein (D-CA), a frail 89 year old and a member of the Senate Judiciary Committee, is at home in California recovering from a bout of shingles that initially required hospitalization in March. Whether she will be able to return to the Senate is uncertain. Moreover, she has announced that she will retire from the Senate in any case at the end of her term in 2024. In the meantime the ten Republicans on Senate Judiciary, no doubt with minority leader McConnell’s support, vote as a block against advancing any Biden nominee to the Senate floor.
You would be pardoned if you imagined that the Senate Majority Leader, Chuck Schumer could just seat another Democrat in Feinstein’s currently empty chair—but you’d be wrong:
Feinstein…who has vowed to return to D.C. “soon,” requested on April 12 that Senate Majority Leader Chuck Schumer appoint a temporary replacement for her on the Judiciary Committee to allow the Senate to confirm justices.
However, the move needed unanimous support in the Senate, with South Carolina Senator Lindsey Graham, the Judiciary ranking member, formally objecting to the measure on April 18 to prevent the Democrats’ plans to “force through their very worst nominees.”
The move to temporarily replace Feinstein on the panel could go to a roll call. However, it is unlikely that a vote would ever pass as it would require the support of at least 10 Republican senators to reach the 60-vote threshold.
Got that? An objection of a single U.S. Senator, in this case Lindsey Graham (R-SC), either on his own or at the instigation of McConnell, is sufficient to block any further Biden appointments to the federal judiciary as long as Senator Feinstein cannot physically return to the Senate. If, in 2024, Biden is re-elected to the presidency but the majority in the Senate reverts back to the Republicans this blockage could continue to 2028.
On account of the continued existence of the sixty-vote-requiring filibuster rule in the Senate, Senate Democrats, even though they hold a single vote majority of the Senate cannot overcome Graham’s “objection”—unless they convince 10 Republican Senators to vote with them to close debate on replacing Feinstein on the Judiciary Committee. Why is there still a filibuster rule? Again, it’s McConnell. McConnell held Senate business hostage at the beginning of the last two year term of Congress (January 2021) by threatening to filibuster a vote on the organizing resolution until it included wording preserving the filibuster.
Republicans in the U.S. Senate are not only currently “in the minority” but, by virtue of the lesser total population of the aggregate of states they represent, they also represent a minority of the American people. Sustaining the filibuster rule offers these Senators even greater leverage over the will of the majority of Americans.
Some have called for Senator Feinstein to resign. If she resigns a Governor Newsom- appointed replacement would be seated in her place in the full Senate, but it will still require sixty votes (nine Republicans) to avoid a potential filibuster. Such a foul roadblock by Republicans could keep Democrats from filling Senator Feinstein’s seat on the Judiciary Committee until this Congress comes to a close at the end of 2024.
Over the years a number of exceptions to the filibuster have been carved out by a simple majority vote of Senators. It has been referred to has the “nuclear option” and has been used to toss out the filibuster first for confirming federal judges other than Supreme Court judges (by Democrats on November 21, 2013) and then for Supreme Court judges, too (by Republicans on April 6, 2017 to confirm Neil Gorsuch). The process is described in the Wikipedia article on the Senate filibuster under “Process for limiting or eliminating the filibuster”.
Perhaps it is time to invoke the nuclear option once again…
Keep to the high ground,
Jerry