Senate Republicans are aiming to cut debate time for most of President Donald Trump’s judicial nominations to just two hours — down from 30 — in their latest attempt to rapidly move conservative-leaning judges into the nation’s judiciary.
The proposal by Senate Majority Leader Mitch McConnell comes during a historic remaking of the judiciary in which Republicans have pushed through 30 federal judges to sit on the U.S. Court of Appeals in Trump’s first two years in office, compared with the two judges former President Barack Obama got seated on that court in his last two years in the White House.
These federal appeals courts, which hear challenges to district court and federal agency decisions, are the most powerful courts in the nation other than the Supreme Court. In five of 12 circuits (the 13th circuit hasn’t seen nominations under Trump), more than 25 percent of the judges were appointed by Trump and ushered through by McConnell, according to an analysis by Lambda Legal, an LGBT advocacy group.
McConnell’s coup de grace, though, was blocking Merrick Garland, Obama’s Supreme Court nominee who was never even given a hearing, and seating now-Associate Justices Neil Gorsuch and Brett Kavanaugh. The Supreme Court now has its first conservative majority in decades.
McConnell’s judicial confirmation prowess could have immediate implications, even without the rule change on debate time. His latest move comes as 16 states, as well as a number of NGOs, have launched lawsuits against the administration over Trump’s declaration of a national emergency to secure funding for a wall at the U.S.-Mexico border.
When making the declaration last week, Trump nodded to the friendlier faces on the Supreme Court.
"We will have a national emergency. And we will then be sued, and they will sue us in the 9th Circuit, even though it shouldn’t be there. And we will possibly get a bad ruling, and then we’ll get another bad ruling. And then we’ll end up in the Supreme Court,” said Trump. “And hopefully, we’ll get a fair shake, and we’ll win in the Supreme Court.”
Rank-and-file Republicans would be familiar with that goal. For years, some have painted Democratic judicial nominees as “activists,” and these days they’re helping McConnell remake America’s judiciary branch in the GOP’s image — from the Supreme Court to the lowest federal courts.
“Every day that we wake up as conservatives and see Mitch McConnell in charge, we ought to be grateful, both for his brilliance but also for his resolve to do it,” said Sen. Kevin Cramer (R-N.D.) on Thursday, referring to his quickly seating new judges. “Clearly Leader McConnell’s legacy may be a number of things, but the most obvious one will be his influence on the courts – and Garland being the most profound.”
Neither McConnell nor the White House responded directly to questions from VICE News on whether this is the GOP’s overt political strategy.
“Clearly Leader McConnell’s legacy may be a number of things, but the most obvious one will be his influence on the courts – and Garland being the most profound.”
Republicans in the Senate are now hoping to increase the pace of district and circuit judicial confirmations in the coming weeks, months and years. Last week, on a strictly party-line vote, the Senate Rules Committee ushered through a package that would allow the GOP to speed up their already rapid pace of nominations by slashing the time needed for debate. The historically slow-moving Senate clock is a constraint both parties have used to keep the opposing party’s nominees and agendas at bay.
Senate Rules Chair Roy Blunt of Missouri and other Republicans, like McConnell, maintain the changes are needed to stop Senate Minority Leader Chuck Schumer and Democrats from filibustering Trump’s nominees. They argue the Senate’s rules need overhauling because Democrats have used the Senate’s rules to drag out and delay 128 of Trump’s nominees in just over two years. That’s compared to the 79 times Democrats say the GOP obstructed Obama’s nominees in his first four years in the Oval Office, which is why Democrats say they initially decided to change the filibuster back in 2013. Prior to that, those tactics were only deployed only 68 times against nominees from all other presidents combined.
The Democrats’ record-setting use of delay tactics has stymied the GOP’s legislative agenda. So McConnell has quietly focused on pushing through conservative judges.
The rules package to decrease the time needed to debate nominees now goes to the full Senate for a vote, and it needs 60 supporters to pass. But with Republicans in control of the Senate and the White House, McConnell is contemplating deploying the so-called “nuclear option” as soon as next week — changing the Senate rules on the time needed for debate with just the support of a simple majority.
Democrats maintain that Obama faced unprecedented obstruction from McConnell first, after he successfully derailed, stalled, sidelined or outright blocked much of his agenda and nominees. That’s why former Majority Leader Harry Reid (D-Nev.) deployed the nuclear option back in 2013 to essentially end the filibuster for all nominees, except those on the Supreme Court. McConnell then deployed that tactic in 2017 to end the filibuster for nominees to the Supreme Court in order to get Gorsuch confirmed. But Democrats are still using the 30 hour rule to keep Trump from quickly ramming through his slate of nominees.
Negotiations are ongoing, and there’s a slim chance Republicans and Democrats can agree to a less drastic rule change, but it’s looking increasingly unlikely that Democrats will agree to any changes. So, many Republicans are fully prepared to go it alone.
“It’s really important. It’s really important, which is why we need to move quickly, as Republicans in the Senate — with or without Democrats — to change our rules to speed up the clock for confirming district and circuit judges,” Cramer said.
That thinking is anathema to Democrats, like presidential candidate and Minnesota Sen. Amy Klobuchar, the top Democrat on the Rules Committee overseeing any changes to business as usual in the Senate.
"At a time of blistering rhetoric, anger, and divisiveness, this is no time to cede this chamber's ability to do its due diligence by removing the guardrails that help ensure judicial nominees have the qualifications for lifetime appointments to the federal bench," Klobuchar said at the Rules Committee meeting where the GOP initially passed the changes over protests from Democrats. “The Senate's constitutional duty of advise and consent is too important to turn into a mere rubber stamp.”
But most in the GOP are ready to change the rules to empower judges who might help fortify the party’s agenda, like building the wall that Trump promised his base on the campaign trail.
“I support him doing it. We’ll see how the Democrats react. I think we have to do what we
think is right right now, and that’s what he’s trying to do,” Sen. David Purdue (R-Ga.) told VICE News as he was leaving the Capitol on Thursday.
“This is historic obstructionism,” Purdue said. “So I’m encouraging our caucus to do
whatever we have to do — all the way to changing the rule.”
The rule change, of course, would also apply to any future Democrat-controlled Senate.
Cover image: Senate Majority Leader Mitch McConnell, R-Ky., talks with reporters outside the Senate chamber about a continuing resolution to re-open the government on Friday, January 25, 2019. (Photo By Tom Williams/CQ Roll Call via AP Images)