And that’s judges…
Let’s face it: unless lawmakers both sides suddenly get fired up about an infrastructure or immigration bill or some such, as far as a legislative agenda goes, the Republican-controlled Senate doesn’t really have much of one. Because there’s not much substantial they can pass that will then pass in the Democrat-controlled House.
So there’s really very little they can do, other than bargain over a budget, which has to be passed every year for government to function. Other than that, they’re just kind of waiting it out, hoping Trump gets re-elected, and they can hold on to the Senate and regain the House. Then, and only then, would they be able to fire up plans to expand on their tax cuts to the wealthy (passed before Democrats had control of Congress), and of course, kill Obamacare.
So a lot of what they’ve been doing in the meantime is just nonsense, to keep themselves busy by bringing stuff to the floor they think will make Democrats look bad when they vote against or for it (depending on what it is), or voting down or refusing to vote on things Democrats have already approved over in the House.
But the one area Republicans in the Senate still have a massive amount of power is in getting Conservative judges approved and onto various federal courts.
So if you look at the day-to-day among Republicans in the Senate right now, it’s pretty much the only thing they’re truly and ardently focused on.
Trump has nominated a huge number of Conservative judges, and Senate Majority Leader Mitch McConnell is moving to get them on the bench at a breakneck pace.
With the confirmation of Neomi Rao to Justice Brett Kavanaugh’s vacated seat on the D.C. Court of Appeals, and Paul Matey to the Philadelphia based 3rd Circuit Court of Appeals last week, the “team” of Trump/McConnell have now gotten 36 federal appeals court judges nominated and through the Senate. Which means, according to the Washington Post, 1 in 5 judges now sitting on a federal appeals court was nominated by Trump. And the Conservative Washington Examiner flipped out last week when–as a result of one of the appointments noted above–Trump “flipped” his first federal appeals court, the 3rd Circuit, which now has a majority of Republican-appointed judges.
And of course, all those appointments are for life.
That leaves just 9 vacancies on federal circuit courts, Trump’s already put up nominees for 6 of them, and Senate Majority Leader Mitch McConnell is working overtime to clear them into their respective seats, because he doesn’t want to take any chances that Trump might lose in 2020, so he aims to fill every vacant spot with months to spare. That should be easy enough. But, according to Politico, Trump and McConnell also have 128 District Court vacancies to fill (that’s a level below appeals courts) and that could butt up against the election, unless of course McConnell changes the rules.
And that’s what McConnell and Conservatives are getting out of the Trump Presidency, first and foremost. All those judgeships. Starting with the “stolen” Supreme Court seat of Justice Neil Gorsuch. (His nomination by Trump came about because McConnell refused to hold hearings on Obama’s nominee, Merrick Garland, after Justice Antonin Scalia suddenly died).
And it’s not something Democrats can stop, even though they took back the House. That’s because approving judges and other Presidential appointments is the business of the Senate alone, according to the Constitution, and as such, is one of the only things the Senate can do without requiring input from the Democrat-controlled House.
There are ways Democrats can slow down the process, most notably by delaying the approval of each judge in the Senate, by exercising their right to 30 hours debate time on every single nominee. And Trump, in his own way, contributed: his recent government shutdown is also responsible for slowing the pace of approvals down, creating even more of a reason for McConnell to go to great lengths to speed it up.
So now McConnell’s working to clear away the obstacles by potentially calling a vote sometime soon to dial down debate time to just 2 hours. That’d never pass under “regular procedure”, because it’d need a 2/3rds majority. But he could just do away with that, and do it with a simple majority on a party line vote. Which, given the super-high priority of filling those open positions in the judiciary, he likely will.
How’s he gonna get away with that? Just do it and then argue it was the old rules that were dysfunctional, not breaking them with unprecedented impunity.
In some ways, bringing a “nuclear option” to the area of judicial appointees was actually something started by Democrats. When Harry Reid was Majority Leader and Republicans were holding up approvals of Obama appointees, Democrats went to a party line vote, with the exception of Supreme Court nominees. McConnell extended that, when Trump nominated Neil Gorsuch, to Supreme Court nominees too. (Incidentally, Reid has frequently predicted the Senate will at some point do away with rules requiring 60 votes for most things to pass, and instead go to a simple majority, like the House. Trump pushed hard over the last two years to try to get McConnell to do exactly that; less so now that it wouldn’t make as much difference with the House likely to vote down anything passed by the Senate anyway. McConnell didn’t do it, perhaps worrying about the implications should a Democrat one day win the Presidency again. Because it’s very unlikely, with the way Senators are apportioned: by state, not by population like in the House, that any majority in the Senate for either party is unlikely to be very large anytime in the foreseeable future).
McConnell’s also ignoring a long-held practice of nixing a judge if both Senators from that judge’s home state don’t also give him or her a nod. But frankly, we don’t really understand that practice to begin with. (Except maybe to ensure some balance?) Senate Minority Leader Chuck Schumer, however, has offered to compromise and agree to shorten debate if Republicans were willing to again honor this, known as the “blue slip” process, which again we don’t really understand. (We mean, we know what it is and how it works, just why?)
Republicans so far have responded to that with a firm “no thanks, we’re good on our own”. Although Politico says McConnell wants all Republican Senators to commit to voting in favor of his rule change before they go all in with it. Just because it is so significant. Still, doesn’t seem Republicans are compromise-minded at all.
Why is all this so crucially important? Because the day will come when Republicans are not in power and Democrats will get to try a lot of the things they’re now championing (or at least aspects of them), like “Medicare for All”, or the “Green New Deal”. And maybe, based on precedent by Republicans, they’ll be able to pass those things in the Senate by simple majority. Even if not, Republicans right now are trying to ensure if that type of legislation starts moving forward, they’ve got a safeguard in place in the form of Conservative judges. Maybe even a concrete wall. So when Republican states challenge these new laws in court (just as Democrats are doing now, just as Republicans did with Obama—that’s kind of where it started), they’ll have a decent chance of prevailing. And probably prevailing a lot of the time, especially if they can speed up the process and get all their judges on before any election comes up that any Democrat can possibly win. The Supreme Court already tilts in favor of Conservatives.
So for Senate Republicans, this is not just about getting judges that agree with them onto the federal courts. Even more significantly, it’s really about preserving the Republican Party. And Conservatives’ objectives and ideals. So even if some day their political influence on Capitol Hill fades, it’ll be present loud and clear in the courts, and for decades to come.
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