Dems' real midterm prize: Command of the judicial wars

The Senate took up one of the biggest prizes of the 2022 elections this week in a sleepy committee room during a lengthy recess.

In the Judiciary Committee on Wednesday, Democrats held a mid-October hearing for six of President Joe Biden’s picks for lifetime judicial appointments. Only two senators physically attended, and a big question hung over the proceedings: Will Biden's party have two more months to approve his judges — or two more years?

For more than 20 months now, Democrats have OK'd their judicial nominees with almost no obstacles and kept pace with President Donald Trump’s big confirmation numbers, despite holding the narrowest Senate majority possible. But as they confront the potential loss of unified government control and prepare for legislative gridlock to resume between the House and Senate next year, continued sway over Biden's nominations may be Democrats' most tangible asset should they hang on to the upper chamber.

And it’s not hard to distill the political stakes of holding on to the Senate's confirmation power, given recent history.

“We have something like 80 federal vacancies — more coming. To leave those judicial seats vacant is to really challenge the Republican message in this campaign that they’re all for law and order," Judiciary Committee Chair Dick Durbin (D-Ill.) said in an interview Wednesday. "You can't have law and order with an empty bench and no judge."

If Republicans win the Senate, Mitch McConnell would become majority leader and might slow confirmations to a trickle, just as he did under President Barack Obama. But if Majority Leader Chuck Schumer holds on, two more years of a Democratic chamber would essentially guarantee that Biden can keep pace with Trump’s judicial totals and bend some circuit and district courts back to the left, not to mention fill a Supreme Court vacancy if one opens up.

McConnell is already sending a warning signal.

"For the last two years, the Democrat-run Senate has been more of a rubber stamp than an equal partner on judicial nominations," the minority leader said in a statement for this story. "I expect that to change if Republicans are in the majority next year."

With the longest evenly divided Senate still going, Biden and Schumer have already set a torrid judicial appointment pace, basically tying Trump and McConnell’s first two years controlling the machinery at 84 total lifetime judicial confirmations, albeit one less Supreme Court justice. Biden was leading Trump's clip handily until this week, in fact; Senate Democrats signed off on confirming more than a dozen of Trump's lifetime judicial appointments right before the 2018 midterms.

Next month's election results will determine whether Biden and Schumer can finish their work or whether McConnell is able to return to his strategy from Obama's latter years in office, dramatically slowing Biden’s confirmation rate and setting the table for a potential GOP presidential win in 2024.

“The stakes are so critical. There’s no exaggerating how important they are, because President Biden needs to continue nominating distinguished and diverse judicial appointees,” said Sen. Richard Blumenthal (D-Conn.). “He will be greatly hamstrung if Republicans are obstructing.”

Republicans are mostly circumspect about how they might treat Biden’s nominees with the battle for the Senate so hotly contested. Earlier this year the No. 3 GOP leader, Wyoming Sen. John Barrasso, said of future vacancies: “My goal is to take the majority. We’ll take a look at that. We need to get the majority.”

Sen. Chuck Grassley (R-Iowa), who would probably chair the Judiciary panel if the GOP wins the Senate, said in a statement that "under a Republican majority, nominees will receive more thorough scrutiny than they have been for the last two years.” Grassley declined even a hearing for Obama's Supreme Court nominee, now-Attorney General Merrick Garland, in 2016.

As majority leader in 2015 and 2016, McConnell confirmed just 20 of Obama’s district and appellate court nominees while leaving Garland off the bench. That’s by far the lowest two-year confirmation total since Jimmy Carter was president, according to the Congressional Research Service. 

Confirming judicial nominees would “be very difficult” in a Republican Senate, said Sen. Angus King (I-Maine). With the GOP’s past record in mind, he added, “we don't have to speculate.”

McConnell's judicial blockade allowed Trump to fill dozens of bench openings and install conservative majorities up and down the court system. In some ways, divided government made it easier for the Kentuckian to focus on his top priority of judges after two messy years of legislating under unified GOP control in 2017 and 2018, punctuated by the failure of Obamacare repeal.

After Democrats took the House in 2018, McConnell went into overdrive and nearly doubled his pace of lower-court confirmations. Ultimately, Trump and McConnell ushered in three new Supreme Court justices, 54 Circuit Court justices and 174 District Court justices — all lifetime appointees, many of them relatively young.

A similar dynamic could present itself next year, as Republicans are favored to take the House while the battle for the Senate remains a toss-up. If Democrats can hold on — even in another 50-50 Senate — they’ll enjoy unilateral confirmation power even if the rest of their agenda is imperiled by a potential Speaker Kevin McCarthy (R-Calif.). Senate rules require a simple majority for judicial confirmations, and moderate Democrats have supported Biden's court picks.

All of the Senate’s committees are tied by party in a 50-50 Senate, though, making it laborious for Democrats to bring party-line nominees from the Judiciary Committee to the floor.

“We've had extraordinary good luck so far with this tenuous majority," Durbin said Wednesday. "I hope that I have a real majority on the committee. There’s a few things we want to take up that are difficult to do."

Judicial confirmations might matter more than ever next year as the courts play outsize roles on issues that Congress is unable to legislate on, from voting rights to abortion to gay marriage.

And when it comes to the most important judicial nomination of all, Republicans from McConnell on down have declined to say how they might handle a Supreme Court opening next year, although the Senate GOP leader has indicated he'd treat a 2024 high court pick similarly to Garland.

The other side of the aisle is pretty confident that McConnell would not entertain a Biden nominee next year either.

“Of course not,” King said. “They had a very well-qualified nominee, almost a year before the election, and they still didn’t act.”

Marianne LeVine contributed to this report.