WASHINGTON ― Senate Republicans are acting pretty mad that Democrats are using the lame duck to confirm lots of President Joe Biden’s judges.
“I’m a bit frustrated,” Sen. Shelley Moore Capito (R-W.Va.) told reporters Tuesday. “After last night’s voting extravaganza, I wonder what we are doing.”
Capito was referring to Senate Majority Leader Chuck Schumer (D-N.Y.) scheduling votes on some of Biden’s court picks on Monday night. Republicans don’t have the votes to stop Biden’s nominees from advancing, so they dragged out the process by hours, forcing time-consuming votes on otherwise routine procedural steps.
It kept everyone in the Senate later than they wanted to be.
“Last night, we were sitting around voting time and time again for these liberal judges that Chuck Schumer wants to put in and ram through at the very last minute before the balance of power shifts,” complained the West Virginia Republican. “I would implore our leadership to go to the important issues the American people are thinking about: that’s completing our work at the end of the year and moving into next year.”
Sen. John Hoeven (R-N.D.) emerged from a GOP lunch griping about some of his colleagues not being in town, which is making it easier for Democrats to get more judges confirmed. He said he was glad to see Sen. JD Vance (R-Ohio), who is now the vice president-elect, return to the Senate on Tuesday.
“We want to see him and some of our members back because of these votes we’re having,” Hoeven said. “Particularly on some of the circuit court judges.”
As a reporter tried to change the subject, Hoeven interrupted to say again how important it is for Republican senators to immediately come back to D.C.
“Because, you know, we could win possibly some of those votes if we have all our folks here,” he said. “Particularly in the circuit court.”
Even President-elect Donald Trump vented on social media about Democrats still confirming Biden’s judges, and demanded that Republicans stop them.
“The Democrats are trying to stack the Courts with Radical Left Judges on their way out the door,” Trump yelled in a Tuesday post. “Republican Senators need to Show Up and Hold the Line — No more Judges confirmed before Inauguration Day!”
It’s a pretty ridiculous moment.
It’s not just because Democrats still control the Senate for the next several weeks and can proceed however they want. It’s because when the tables were turned in 2020 ― when the GOP controlled the Senate in the lame duck and Biden had just defeated Trump ― Republicans took full advantage of confirming as many of Trump’s court picks as possible.
Republicans confirmed 13 of Trump’s lifetime federal judges in the lame duck in 2020, after Biden won the election. That’s not even factoring in the GOP’s unprecedented race to confirm Supreme Court Justice Amy Coney Barrett in October 2020, as votes were already being cast in the presidential election.
Senate Minority Whip John Thune (R-S.D.), who will be the Senate majority leader in January, was among those celebrating the volume of Trump’s judges being confirmed during the lame duck in 2020.
“A couple of weeks ago, we confirmed one of the most qualified Supreme Court judges in living memory to the bench,” Thune said in a Senate floor speech on Nov. 18, 2020, after Biden had won the election.
“This week we will confirm five district court judges, bringing the total number of judges we’ve confirmed over the last four years to nearly 230,” he said. “Confirming good judges is one of our most important responsibilities as senators.”
In the same speech, the South Dakota Republican condemned Democrats for blocking some of President George W. Bush’s judicial nominees in 2004.
“I was one of the many Americans upset by the blockade of talented, well-qualified nominees,” he said. “And it was one of the main reasons I ran for the Senate.”
Thune sounds a lot different this week as he, too, complains about Democrats lining up votes on Biden’s judicial picks. In fact, he is reportedly taking credit for the GOP’s efforts Monday night to delay Democrats’ votes.
“If Sen. Schumer thought Senate Republicans would just roll over and allow him to quickly confirm multiple Biden-appointed judges to lifetime jobs in the final weeks of the Democrat majority, he thought wrong,” Thune told ABC News.
White House spokesman Andrew Bates scoffed at Thune’s about-face.
“Delaying the confirmation of highly qualified, experienced judges takes a real-life toll on constituents and leads to backlogs of criminal cases ― meaning Senator Thune was correct in 2020 when he said senators have every urgent reason to continue working together in good faith to staff the federal bench,” Bates said in a statement. “There is no excuse for choosing partisanship over enforcing the rule of law.”
As much as Republicans may complain, Democrats still control the Senate for another several weeks, and Schumer plans to use that time to confirm as many of Biden’s pending judicial nominees as he can ― possibly all of them.
As of Tuesday night, the Senate had confirmed 217 of Biden’s judges since he took office. There are 26 more judicial nominees awaiting Senate action, of which 22 are district court nominees and four are appeals court nominees.
If Democrats are able to confirm all of them before Congress adjourns for the year, that would put Biden’s total number of lifetime federal judges at 243. That’s more than Trump got in his first term, 234, and would be a massive win for Biden if Democrats can pull it off.
“It’s no secret the Senate is moving forward on confirming more of Biden’s judicial nominees,” Schumer told reporters Tuesday.
Since the end of last week, he’s lined up confirmation votes on 12 of Biden’s district court nominees and one appeals court nominee, Embry Kidd, who was confirmed Monday to the U.S. Court of Appeals for the 11th Circuit. The Senate also confirmed Mustafa Kasubhai on Tuesday, an Oregon district court nominee.
All of these judges are lifetime appointments. Since the Senate doesn’t need the House to confirm judges, which are arguably a president’s most lasting legacy, Schumer is just plowing ahead with votes on all of Biden’s court nominees.
Senate rules require up to two hours of debate on each district judge, which comprises the bulk of Biden’s remaining court picks. So if Schumer lined up votes for five of them, for example, and Republicans decided to drag out those votes, he would keep senators in session for 10 hours to get through them all.
“We’ll keep working to confirm these lifetime appointments,” Schumer said. “It’s far too important. We’re not going to let anything stand in our way.”
He warned senators to be prepared for another late night on Wednesday “to get as many judges done as possible.”
“We’re going to persist.”
- Senate Majority Leader Chuck Schumer (D-N.Y.)
With the clock ticking, Republicans are scrambling to get all of their colleagues back in Washington. Five GOP senators missed votes on Tuesday: Sens. Mike Braun (Ind.), Kevin Cramer (N.D.), Ted Cruz (Texas), Bill Hagerty (Tenn.) and Marco Rubio (Fla.).
Hoeven said he wasn’t sure if or when all the missing senators will return.
“We’re going to have some dialogue and try to see if we can’t get everybody back,” he said.
Democrats are plowing ahead regardless. Schumer brushed off a question from a reporter about some Republicans vowing to use procedural rules to gum up Senate business to try to stop him from confirming more judges.
“They can try dilatory tactics,” he said, “but we’re going to persist.”