Senate to Focus on Judicial Confirmations Once Chamber Returns in May

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

The New York Times editorial board today lamented the Trump administration’s focus on enacting longstanding conservative goals during the COVID-19 pandemic in Trump: Why Waste a Crisis?

What did they expect?

Trump has his eye on the November prize, while the Grey Lady  instead accedes to the Democratic National Committee’s crafty plan to place all its eggs in the Joe Biden basket.

Trump, by contrast, is doubling down on measures that will either fire up his base, or appeal to its corporate funders, or both. Such as reshaping immigration law (as I wrote about here); rolling back environmental regulations (such as they are); bailing out the oil and gas industry (as DeSmogBlog discusses here); and confirming federal judges.

As The Hill tells the story:

In a Tuesday interview with radio host Hugh Hewitt, Senate Majority leader Mitch McConnell emphasised that judicial confirmations will be a top priority once the Senate returns to session in May,

As soon as we get back in session, we’ll start confirming judges again. We need to have hearings, and we need to confirm judges. … The pandemic will not prevent us from achieving that goal,” McConnell said.

The GOP leader views judicial nominations, particularly influential circuit court picks, as his top priority when scheduling floor time and has called them the party’s best shot at having a long-term influence on the direction of the country.

As I’ve written before, the Trump administration has taken a systematic approach to judicial confirmations, maintaining a laser focus – one which will prove to be a longstanding legacy,, as Article 3 federal judges enjoy lifelong tenure (see here, here, and here).

Over to The Hill again:

Republicans have raced to confirm Trump’s judicial nominees, setting a record for the pace of confirming appeals court judges. The Senate has confirmed a total of 193 judicial nominations since Trump took office, including two Supreme Court picks and 51 appeals judges.

The total is the second fastest overall confirmation pace of any U.S. president, according to the Article III Project, a conservative group that works to confirm Trump’s judicial nominees.

Now, part of the reason Trump had so many positions to fill is that beginning in 2014, the Republican majority successfully frustrated his predecessor’s attempts to confirm and seat federal judges, as discussed in this Brookings account, Senate obstructionism handed a raft of judicial vacancies to Trump—what has he done with them? Less often discussed is the last Democratic administration was slow off the mark in trying to seat federal judges starting in 2009, when the party enjoyed a comfortable 60 majority in the Senate.

And unlike his predecessor – who managed to botch his final Supreme Court pick, nominating Merrick Garland, a jurist who inspired no enthusiasm from Democrats, while failing to attract Republican support, the Trump administration is proceeding full speed ahead, damn the torpedoes with ultra-conservative nominees, such as seeking to elevate U.S. District Judge Justin Walker to the U.S. Court of Appeals for the D.C. Circuit and Mississippi Court of Appeals Judge Cory Wilson to the U.S. Court of Appeals for the Fifth Circuit, according to Common Dreams.

Permit me to repeat at length what I wrote about that Garland nomination in a 2016:post entitled Doing Time: Prison, Law Schools, and the Membership of the US Supreme Court

I was thinking about Obama’s stalled Supreme Court nomination of Merrick Garland the other day, and that conference in South Africa came to mind. And my memory of that made me realize exactly what I think was so wrong in Obama’s choice of Garland as his nominee for former Justice Antonin Scalia’s old seat– and in fact, in a wider sense, what’s missing from political debates about who should serve on the Court.

Obama often seems to be shadowboxing with himself, and his pathological– and somewhat naive, IMHO insistence on bipartisanship– caused him to stumble badly in making this nomination.

And not that I make that statement, I’m not viewing the appointment through the lens of identity politics that is common for assessing such appointments. When considering Supreme Court justices– all of whom usually share common elements of background and similar experience– we tend to use aspects of identity as a proxy for experience.

Our current Supreme Court membership lacks any of the breadth of experience (not to mention any progressive sensibility) that characterized former members of the Court (with perhaps the exception of Justice Ruth Bader Ginsburg, who successfully litigated several important gender rights cases). But where is our Louis Brandeis– the so-called People’s Lawyer, who pioneered the use of science, and social science, in his “Brandeis brief”, and frequently acted on behalf of progressive legal causes that challenged monopolies and corporations and litigated aspects of workplace safety and pro-labor laws? And how about Thurgood Marshall, who successfully argued many cases key civil rights cases, the most famous being Brown v. Board of Education.

Merrick Garland is obviously intellectually able enough to serve on the Court (but more on that in a moment). He did, after all, graduate at the top of his Harvard College class before moving on to Harvard Law School. But at 63, he’s too old, too bland, too typical of the current mode of US Supreme Court justices, to be an apt choice for the position. Now, by too old, I don’t mean to imply he’s too old intellectually. But Presidents get very few chances to shape the membership of the Supreme Court, and Obama should have opted for someone younger, who would be expected to serve a longer term.

Democrats obviously thought that the failure of the Senate to confirm Garland’s nomination– despite more or less bending over backwards to select a nominee even Republicans could love– would cause outrage on the campaign trail.

Well, guess what, according to Politico, it hasn’t:

From Pennsylvania to New Hampshire to Arizona, Senate Democratic candidates repeatedly hammered Senate Republicans for essentially ignoring Garland’s nomination with a “Do Your Job” message they figured would resonate with swing voters. During well-publicized recess events, activists hounded GOP senators back in their home states.


“I heard almost nothing about it,” said Missouri Sen. Roy Blunt, who is in an unexpectedly tough reelection bid against Democrat Jason Kander. “I saw thousands of people. We did 106 events that involved lots of people and I think in passing, one person mentioned Merrick Garland.”

Obama seemed to be interested in chalking up a win, and didn’t really think through exactly what he would be winning.

If Obama had made a less anodyne choice, he could perhaps have galvanised some element of the Democratic party’s base to press for confirmation. But no one seems ready to agitate for Garland’s confirmation. Voters simply do not seem to care about the empty Supreme Court seat, especially when compared to other ore pressing issues. In the context of a discussion of an ongoing Senate race, GOP strategist Scott Jennings, who ran a super PAC backing McConnell in 2014. said, “The idea that voters were going to make a Supreme Court vacancy a more important issue in a Senate race than say jobs or health care was ludicrous the day it was hatched,” again according to Politico.

Chalking Up Wins AND getting the Candidates it Wants

By contrast, the Trump administration did not fumble the opportunity that it was handed. And, as The Hill discusses, Republicans are looking even more widely to make sure that they maximise their number of judicial picks:

McConnell and his colleagues have been encouraging some federal judges appointed by Republican presidents to retire this year in order to ensure that their seats will be filled by ideological allies, The New York Times reported last month.

McConnell on Tuesday appeared open to Hewitt’s suggestion that a federal judge could say they are going to retire but only if their replacement is confirmed by the end of the year. Control of the Senate is up for grabs in the November elections as Democrats try to take back the majority starting in 2021.

“I could be wrong, but I think that’s been done before, that retirements have been announced contingent upon replacement,” McConnell said. “I’m not certain about that, but that’s a good way to, that’s something worth taking a look at.”

What’s At Stake?

Well, as Common Dreams summarizes:

Civil rights groups decried Trump’s nomination of Walker and Wilson as another step toward packing the federal courts with “right-wing ideologues” hostile to reproductive rights, workers, and the environment.

Trump, with the help of McConnell and the right-wing Federalist Society, has now hand-picked around one in every five U.S. federal judges. Because Trump’s selections have been disproportionately young, they will have the power to reshape American law for decades to come.

Republicans, particularly the leadership, know what they want,  We shouldn’t fault them for pursing their priorities.

What we should instead think about is setting alternative judicial priorities, and filling seats, the next time Democrats get the chance.

That extends to confirming judges who wouldn’t be acceptable to Republicans.

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  1. Carolinian

    The idea that voters were going to make a Supreme Court vacancy a more important issue in a Senate race than say jobs or health care was ludicrous the day it was hatched

    Ludicrous or not I have a friend who defends the Dems and Biden on the basis of “think of the courts.” At times it seems like that’s all they’ve got. Judicial activism gave us abortion rights and has been important in environmental fights but it has also fueled a backlash from the right that gave us Reagan and Gingrich. When it comes to advancing the cause it has been a very mixed bag.

    1. Noone from Nowheresville

      How much of it is a from the bottom backlash vs. a multi-front top down backlash to divide and conquer? Or just fight on some many fronts that other objectives can be more easily obtained because we’re distracted elsewhere.

    2. Cat Burglar

      If I recall correctly, neither Clinton nor Obama made judicial appointments a priority. But Democrats bring up the issue at every presidential election. As with Democrat “lack of backbone” in legislating and governing from the left, so with judges: they aren’t appointing them because they are getting the conservative judges donors want.

      1. Lee Christmas

        Democrats always seem to be blindsided by Republican strategy, and then haphazardly try and copy it, rather than come up with new tactics. They seem to be perpetually behind, running plays that Republicans ran 5-10 years prior. This while conservatives, ironically, look to the future for policies that evoke the past.

        Maybe this year Democrats will focus hard on the census and reapportionment, as they lost that battle in 2010 (helped along with Citizens United). But are Republicans already hatching a new strategy, using their newfound judicial appointments? Who knows?

        In 1976, Buckley v. Valeo opened the corporate spending floodgates, allowing people like Gingrich to parachute in. In the 80’s under Reagan, Dems tried to court some of that money, meanwhile the R’s had already moved onto the evangelicals.

        I remember reading this article a few years ago about Obama administration and judges:

        “Obama had pledged to close the prison at Guantanamo and reform the ad hoc process of using military tribunals to try prisoners incarcerated as enemy aliens. Craig tried to carry out what he took to be the president’s policy. Chief of Staff Rahm Emanuel viewed these efforts as a distraction that would only rile Republicans and impede other legislative priorities. Obama had asked Craig to hire as his deputy Cassandra Butts, the president’s friend and law school classmate. Working under Butts and doing much of the detailed work of assembling possible nominees was Susan Davies, a former counsel to Pat Leahy. Craig and Davies did not get along well with Butts. Emanuel, meanwhile, kept undercutting Craig, leaking reports of his imminent departure. By November, both Butts and Craig were gone. Judicial appointments suffered from all the infighting. Adding to slow start was the fact that the Justice Department Office of Legal Policy did not get an assistant attorney general until April 2010. Unlike some previous attorneys general, such as Ed Meese under Ronald Reagan, Obama’s Attorney General, Eric Holder, has had no particular interest in judges.

        I don’t think Democrats EVER have any sense of strategy that comes close to what Republicans have been doing for the last few decades. And Republicans, despite the ideological allergy to Government, wield power spectacularly and with ruthless precision.

        It always seems that people like Obama and Emanuel try rather hard to be Republican Whisperers, while people like McConnell quite loudly tell them to get bent.

        1. Jerri-Lynn Scofield Post author

          Thanks for this reference. Provides details to support my point that the problem wasn’t solely the obstruction that began when Republicans gained their Senate majority in the 2014 elections, but a failure to make seating judges a priority throughout the administration – including at the start, when Democrats held 60 Senate seats.

    3. .Tom

      Ludicrous or not I have a friend who defends the Dems and Biden on the basis of “think of the courts.”

      Isn’t that also Noam Chomsky’s argument now?

      1. L

        Is that his argument or is he saying that is the only good argument? I have encountered some people who advance the argument as an argument of last resort. I.e. “I agree with you but I’m really concerned about the court and we cannot afford that.” Or is it the argument of only resort: “I suppose you hate RBG then!” or “Good luck getting anything you want with a conservative court Bernie Bro!”

        To my mind the nuance matters.

        1. JTMcPhee

          And of course it that is all the “argument” that people who are all in for Biden have, and I don’t see much else other than “more of Obamasame,” then it’s likely they will ensure (and endure, those who are upset by continued ascendancy of the Elite, anyway) four more years of Trump. Or Pence, if Trump gets tired of it all. And then not only will there be no hope of change, but RBG may not last (not that 5-4 wins any Grand Liberal Cases) and Trump and the Federalist Society get their unshakeable neoliberal-corporatist majority anyway.

          Sounds like a real winner of a last stand…

        2. .Tom

          Is that his argument or is he saying that is the only good argument?

          Afaict, the former. He seems pretty clear that it you’re in a swing state then it’s your moral duty, because judges and nukes, to vote for the lesser of the two evils.

          1. JTMcPhee

            I’m more worried about Biden as figurehead for the neocons, when it comes to having the keys to the Imperial nuclear option. The Dems are the bigger War Party in my view.

            That was one of the progressive concerns about HRC, at least the ones I know.

  2. flora

    The filibuster still exists. GOP used it a lot. Will the Dems use it ? (rhetorical question).

    1. Adam1

      Sorry, but Harry Reid (D) and team removed the filibuster option (nuclear option) for cabinet members and judges.

  3. John

    McConnell is a ruthless politician. I suppose he must believe he is doing “God’s work” by packing the courts with the membership of the Federalist Society. Obama never got it through his head nor did or have the Democrats in the Senate ever deep down understood that they are giving obeisance to the rules and traditions of the Senate while the Republicans, in the manner of the revolutionaries that they are, simply bulldoze their way to victory, i.e. a federal judiciary full to bursting with originalists and ideologues. Unless you are on the side of their program, stay out of federal court. It’s onward to the Gilded Age!

  4. Noone from Nowheresville

    What’s the equivalent of the Federalist Society for the bottom 80%*? Where are the law schools which specialize in law to support the rights and policies of / for the bottom 80%? Who funds them? How many students from these schools go onto clerk for federal, appeals and Supreme Court justices? What do we consider the latest or the last major breakout legal ruling which supports the rights / policies of the bottom 80% which hasn’t been overturned on appeal?

    Are there differences in jurists? Absolutely. But given how we reward / punish an attorney, fund their law schools and policy / law theory influencers, I bet these days the differences in legal theory and how one interprets the law are getting narrower for newer jurists.

    That’s my very much outsider impression. Or is that an inaccurate impression of the in the now times based on my limited exposure to cases?

    *As opposed to a left-wing based (Democratic party) equivalent of the Federalist Society.

    1. L

      It is worth highlighting a point made by Jacobin along these lines in: Bernie’s Campaign Strategy Wasn’t the Problem. Institutions matter.

      The Federalist Society has been a generational project funded by wealthy donors to remake the courts. While you can say that Trump is ramming them through the reality is that it was created years ago to tee up for this very moment. The plan was not to think for the next election but to breed a generation of “conservative legal scholars” (whatever that really means) so that when the time was right they would take over. Trump is just playing along.

      There is no comparable leftward institution that produces such scholars or links them to the right judicial clerkships so that they can be carried along to a lifetime of stomping on the poor while wearing a black robe. Indeed recent events such as North Carolina’s efforts to stifle just such a group show that the conservatives are eager to prevent any such organization from ever arising.

      Ultimately without a long and well-funded plan to remake things, the best we can hope for is Merrick Garland.

      1. Noone from Nowheresville

        I’ll agree institutions matter.

        Then I’ll note, any funding by a so-called left wing of capital could be removed or re-directed at will. Not unlike Philanthropy. Right-hand creates the problem so the left-hand can fix the problem.

        What’s required would have to be funded by bottom 80% and we don’t have any money or even jobs at the moment.

        Garland is no spring chicken and I suspect not a cheerleader for the bottom 80%.

        So no redress from the legislature, the executive or the courts. And our way of life is about to even more dramatically change. Chaos will rein and anything is possible. The Shadows & the Vorlons will battle it out. Where will “we” be?

        a Kris Kristofferson line has been running through my head this morning.

        Freedom’s just another word for nothin’ left to lose,
        And nothin’ ain’t worth nothin’ but it’s free

        When enough people have nothing left to lose, what will that mean for our adherence to the mythos of capital? I know not really a legal question.

      2. wilroncanada

        I think David Rockefeller and his group made it a priority from around 1971 and worked at it since through the development of its think tanks. To build up to it they made bargains with the revivalist religious schools to provide “education”, so that recruits were available for clerkships to radical right wing judges who were making their way up the ladder through courts of appeal. A veritable stream of Federalist flow.
        The same thing has been happening in Canada led by the founders of the Reform Party, about ten years later

        1. wilroncanada

          To add:
          Marcie McDonald wrote a book about the Canadian plan in 2010.
          It is called: The Armageddon Factor

        2. John Zelnicker

          April 23, 2020 at 11:04 pm

          I’m not familiar with David Rockefeller’s group.

          However, it was in August, 1971, that Lewis Powell, soon to be nominated to the Supreme Court, wrote a manifesto for a friend who was the Director of the US Chamber of Commerce that outlined a long-term strategy for a conservative takeover of government and social institutions.

          The Koch brothers and other wealthy conservatives have been following that playbook ever since, e.g., Cato Institute, Heritage Foundation, and the Federalist Society. The funding of “research centers” at universities, such as the Mercatus Center have also been a part of this strategy.

  5. chuck roast

    With all due respect Jerri-Lynn what you wrote was a bunch of nonsense because the dem/rep nominees are all corporate tools. Some totally slavish, others seemingly diffident, but in the end they all accept the “rule of Delaware.” Until we Move to Amend, we are all well and truly screwed by corporate rule and their judicial toadies. The barristers all play golf. They just play at different country clubs.There are two things that the lot of them need to understand:
    1.) Corporations and other artificial entities are not people, and
    2.) Money is not speech.

    Doubtless they will try to wind themselves into pretzels trying to twist those words, but until we Move to Amend the lot of them are my sworn enemies.

    1. Jerri-Lynn Scofield Post author

      We’re more in accord than you might think. That piece I quoted from at length is about judicial diversity – not looking at skin colour, or gender – but class, experience, and other factors. Why are all Supreme Court justices former students at Harvard or Yale? Why don’t we select public defenders, or people who’ve actually done time – the post started by discussing a member of South Africa’s highest court, who’d been imprisoned during his youth. Think about his breadth of perspective.

      Or, for that matter, why do Supreme Court justices have to be lawyers at all? Many issues they decide are not tricky legal questions, and to sort the details of those, they could rely on the expertise of clerks (as I’ve written in another post, Barriers to Entry: On Bar Exams and Supreme Court Seats, quoting, of all people, Judge Richard Posner: “Nor should appointment to federal courts including the Supreme Court be limited to lawyers. A brilliant businessman, a brilliant politician, a brilliant teacher might make an excellent judge or justice and greatly improve a court, relying on brilliant law clerks for the legal technicalities, which anyway receive far more attention from judges than they should, because most of the technicalities are antiquated crap.” )

      These are some of the broader issues those who despair of the rightwing take-over of courts should consider – rather than choosing to bet the bank on Merrick Garland.

  6. GK

    “But no one seems ready to agitate for Garland’s confirmation. Voters simply do not seem to care about the empty Supreme Court seat, especially when compared to other ore pressing issues. In the context of a discussion of an ongoing Senate race, GOP strategist Scott Jennings, who ran a super PAC backing McConnell in 2014.”

    Republican voters, by all accounts, do care about Supreme Court seats, and other judicial nominees, for that matter. I agree Democratic voters weren’t motivated to turn out in 2016 by the refusal to confirm Garland. I don’t see much evidence that voters who were willing to consider voting Democratic would have been more motivated if the nominee had been someone with better progressive credentials. Who would that person be? Even if there was a progressive judge who would have increased turnout for the Democratic nominee, wouldn’t the nomination of someone like that also drive up Republican turnout? In short, I’m not sure I see a way that the open seat could have been converted to a Democratic electoral advantage given the circumstances of 2016.

  7. JTMcPhee

    It’s all about knowing what you want, then organizing and going forth and getting it. As noted, since the Powell Memorandum the corporate pond scum have seen their opportunities and grabbed them with both hands. Indeed, a multi-generational class war, and as Buffett said so trenchantly, “my class, the rich class, is winning.”

    Some Lefties interpret this as some kind of softness on Buffett’s part, a wistfulness that he and Bezos will relent, seeing that they are so far ahead. No way. What Buffett said was to bolster the sense of impotence that the mopes are poaching in. They go to their graves grasping for “MORE.” With their battalions of PMCs leaping onto the dropping swords of the working class, to open a wedge for the armored Knights of Great Wealth to drive into.

  8. JBird4049

    So when the entire economic, medical, and perhaps societal systems are doing a collective Tilt! the most important thing is not to stop that, but to continue to rig the same collective.

    I see. Does anyone know about the U.S. Supreme Court decision on Scott v Sandford in 1857? The court ruled 7-2 against Dred Scott who was suing for his freedom.

    Paraphrasing, Chief Justice Taney said that people of African decent, slave or free were not entitled to rights, protections, and privileges of the Constitution at all.

    The decision was reversed eight years later. It only took a four year civil war and roughly one million dead or wounded both military and civilian. Men, women, and children.

    I do sometimes wonder what our Meritocracy believes merit is as well as what is taught at the Ivies.

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