During the disastrous first presidential debate in September, Donald Trump mocked Barack Obama, and Joe Biden by extension, for leaving office with so many unfilled federal court seats.
“I will have so many judges because President Obama and he left me 128 judges to fill,” said Trump, slightly increasing the 105 vacancies he inherited. “When you leave office, you leave no judge. It’s like, you just don’t do that … If you left us 128 vacancies, you can’t be a good president.
But, as is often the case with Trump’s attacks, the story is much more than that. It is true that Trump inherited almost twice as many seats in federal courts as Obama in 2009. However, Democrats attributed the high number of seats to what they described as an unprecedented level of obstruction by Republicans after they took control of the Senate in 2015.
Throughout Trump’s lone term as president, he and Senate majority leader Mitch McConnell have successfully remade the federal judiciary, and Democrats are eager to confirm liberal judges as soon as Biden takes over. But some Democratic lawmakers have already expressed concern that Republicans will once again obstruct legal nominations if they stay in the Senate by winning at least one of the runoff contests in Georgia next month.
Dick Durbin, who seeks to become the top Democrat on the Senate judiciary committee, raised this concern in late November, predicting that Biden would have “very little” impact on the federal judiciary if Republicans maintained control of the chamber.
“If the last two years of the Obama administration were any indication, they will freeze them,” Durbin told Politico. “Hope is eternal, but I believe in history.”
Daniel Goldberg, legal director of the progressive Alliance for Justice, said Durbin’s comments underscored the importance of the Georgia Senate election. If Democrats won the two January 5 runoff runs, the Senate would be 50-50, and Vice President-elect Kamala Harris could provide the 51st decisive vote.
“I think Senator Durbin just made it clear how important the elections in Georgia are. The stakes couldn’t be higher, ”said Goldberg.
If Republicans won at least one of the contests in Georgia and maintained control of the Senate, Chuck Grassley should chair the judiciary, and the Iowa senator would have the ability to prevent Biden’s nominees from receiving hearings.
“If Grassley decides to play hardball, he just won’t be able to bring them into the audience and there’s nothing the other side can do,” said Josh Blackman, a professor at South Texas College of Law Houston and an adjunct scholar at the libertarian Cato Institute.
That possibility is distressing for Democrats, who watched with dismay as the Senate approved more than 200 of Trump’s judicial nominees since 2017. While Obama managed to approve 55 of his nominees for federal appeals courts in eight years, 54 of Trump’s nominees. nominees were confirmed in just four years. Approximately a quarter of all federal judges at the trial level are now appointed by Trump.
Risk for Republicans
Josh Blackman also warned that there could be potential consequences for Republicans if they choose to “play hard” with Biden’s nominees. “If Democrats take the Senate in 2022, they can just fill the seats, so you can get more moderate appointments now to fill the void,” said Blackman. “If you wait another two years, they can become less moderate.”
That calculation may be part of the reason why some Democrats are more optimistic than Durbin about the likelihood of Biden’s court nominees being confirmed.
“I think the dynamic is very different from the dynamic with Donald Trump as president,” said Russ Feingold, a former Democratic senator from Wisconsin. “Having served in the Senate for 18 years, 16 years on the judiciary committee, I can say that people at home want these seats occupied. And there is pressure from newspapers, from the legal community when that doesn’t happen ”.
Feingold, the president of the American Constitution Society (ACS), argued that Biden’s team also prioritized court orders in a way that the Obama administration did not.
“Because of the economic situation and the need for health care approval, it didn’t get the attention it deserved” during Obama’s presidency, Feingold said. “I believe that the Biden transition and the Biden administration will give it the attention it deserves and make it a higher priority.”
ACS has already provided Biden’s team with an extensive list of potential candidates, hoping to ensure a smooth nomination process once a vacancy in the federal judiciary is opened.
“It’s not just going through McConnell,” said Feingold. “It means being ready and moving those names around and being ready when there are vacancies.”
Legal experts argue that if McConnell blocks Biden’s court nominees, the repercussions for the country will be severe. Not only would the courts likely find it difficult to handle their lawsuits with vacancies piling up, but the potential stalemate could damage the reputation of the federal judiciary and the Senate.
“The American people have just repudiated Donald Trump and elected Joe Biden to the presidency, and one of the critical functions of the presidency is to nominate individuals to participate in our federal courts,” said Goldberg. “I think what the American people expect is that the Senate does not have a set of rules for Donald Trump and a set of rules for Joe Biden.”
Although Feingold is more optimistic than Durbin about Biden’s court nominees receiving hearings, he acknowledged that it will likely be an uphill struggle. If Democrats lose the Senate, Feingold said, they should not wallow, but prepare for battle.
“I understand that it will be a challenge, a tremendous challenge that will involve a lot of negotiations if the Democrats are unable to control the Senate,” said Feingold. “But it is a challenge that I think can be overcome… We must not despair. We must be ready for the fight. “