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During the first disastrous presidential debate in September, Donald Trump mocked Barack Obama, and Joe Biden by extension, for leaving office with so many vacant Federal Court seats.
“I’ll have so many judges because he and President Obama have left me with 128 judges to fill,” Trump said, slightly inflating the 105 positions he inherited. “When you leave office, you leave no judge. It’s like you don’t do that… If you give us 128 openings, you can’t be a good president.
But as is often the case with Trump’s attacks, there is much more to the story than that. It is true that Trump inherited nearly twice as many Federal Court vacations as Obama did in 2009. However, Democrats blamed the high vacation count on what they described as a level of obstruction without precedent from the Republicans after taking control of the Senate in 2015.
In Trump’s sole tenure as president, he and Senate Majority Leader Mitch McConnell successfully overhauled the federal court system, and Democrats are eager to confirm the liberal judges once Biden takes office . But some Democratic lawmakers are already worried that Republicans will again stand in the way of judicial appointments if they retain the Senate by winning at least one of the second-round races in Georgia next month.
Dick Durbin, who is seeking to become the top Democrat on the Senate Judiciary Committee, raised the concern in late November, predicting that Biden would have “very little” impact on the federal justice system if Republicans maintain control of the chamber.
“If the last two years of the Obama administration were any indication, they’ll freeze them,” Durbin told Politico. “Hope is eternal, but I believe in history.”
Daniel Goldberg, legal director of the Progressive Justice Alliance, said Durbin’s comments underscored the importance of Georgia’s Senate elections. If Democrats won both races in the Jan.5 runoff, the Senate would be 50-50, and Vice President-elect Kamala Harris could provide a decisive 51st vote.
“I think Senator Durbin has just made it clear how important the elections in Georgia are. The stakes could not be higher, ”said Goldberg.
If the Republicans won at least one of Georgia’s races and retained control of the Senate, Chuck Grassley would have to chair the Judiciary Committee and the Iowa senator would have the ability to prevent Biden’s candidates from receiving hearings.
“If Grassley decides to play hardball, he just couldn’t get them to the hearings, and there’s nothing the other party can do,” said Josh Blackman, professor at South Texas College of Law Houston and associate researcher at the libertarian Cato Institute.
This possibility is distressing for Democrats, who have seen with dismay that the Senate has approved more than 200 of Trump’s presidential candidates since 2017. While Obama was able to get 55 of his federal appeals court candidates approved in eight years, 54 of those Trump nominees have been confirmed in just four years. About a quarter of all federal trial judges 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 the Biden nominees. “If Democrats take the Senate in 2022, they might just fill the vacancies, so you might get more moderate candidates now to fill the void,” Blackman said. “If you wait two more years, they might get less moderate.”
This calculation may partly explain why some Democrats are more optimistic than Durbin about the likelihood of Biden’s judicial 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 Judicial Committee, I can tell you that the people back home want these seats filled. And there is pressure from the newspapers, from the legal community when that doesn’t happen.
Feingold, the president of the American Constitution Society (ACS), argued that Biden’s team had also prioritized judicial appointments in ways the Obama administration had not.
“Due to the economic situation and the need to switch health care, this did not get the attention it deserved” during Obama’s presidency, Feingold said. “I believe the Biden transition and the Biden administration will give it the attention it deserves and make it a higher priority.”
The ACS has already provided Biden’s team with long lists of potential candidates, hoping to ensure a smooth appointment process once a seat on the federal bench opens.
“It’s not just about overtaking McConnell,” Feingold said. “It’s being ready, getting those names moving and being ready when there are vacancies.”
Legal experts say if McConnell blocked Biden’s forensic candidates, the repercussions for the country would be severe. Not only would courts likely find it difficult to manage their workload with the accumulation of vacancies, but the potential deadlock could jeopardize the reputation of the federal judiciary and the Senate.
“The American people have just repudiated Donald Trump, and he elected Joe Biden as president, and one of the critical roles of the presidency is to nominate people to sit in our federal courts,” Goldberg said. “I think what the American people are waiting for is that the Senate doesn’t have a set of rules for Donald Trump and a set of rules for Joe Biden.”
While Feingold is more optimistic than Durbin about Biden’s court nominees hearings, he admitted it would likely be a tough fight. If Democrats lose the Senate, Feingold said, they shouldn’t wallow but prepare for battle.
“I understand that it will be a challenge, a huge challenge that will involve a lot of negotiation, if the Democrats are not able to control the Senate,” Feingold said. “But it’s a challenge that I think can be met… We must not despair. We must be ready for the fight. “
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