“They’re frozen”: Democrats fear Senate Republicans will block Biden’s judges

“If there are signs of the last two years of the Obama administration, they will be frozen,” Durbin said. “Hope comes forever, but I believe in history.”

Biden, who was chairman of the Judiciary Committee from 1987 to 1995, will face an institution that has only become more partisan since he left, especially when it comes to the courts. Last month, Amy Coney Barrett became the first supreme court judge in 151 years to receive no votes from the minority party.

Despite a majority of Republicans still not acknowledging that Biden’s elected president, Senator Chuck Grassley (R-Iowa), the Supreme Republican of the Judiciary Committee next year, said he “naturally” takes Biden’s judicial candidates into account. If Republicans retain the Senate, they will be in an unusual position to examine and push through minority party nominations. President George HW Bush was the last president to take power under the Senate without his party, although Republicans were in the Senate for only a few months during the start of his son’s presidency.

Members of both parties recognize that in a divided government, Biden’s candidates must be a compromise like everyone else.

“If we keep the Senate, there will be a trial,” said Senator John Cornyn (R-Texas), a member of the Senate Judiciary Committee and McConnell’s ally. “Maybe [Biden] welcomes the fact that the most radical candidates will not be confirmed by the Republican majority. That we really need to negotiate and come up with something that is acceptable to both parties. “

But the negotiations could be challenging, especially given McConnell’s interest in filling the courts with conservative judges and the hard line that some Senate Republicans have already taken on judicial candidates, even with a Republican president.

“I imagine they’re going to have a hard time just because I’m not going to vote for people who I think are‘ judicial imperialists, ’” said Senator Josh Hawley (R-Mo.), Whose opposition helped sink Trump’s candidate in the U.S. 5th District Court of Appeals. – But you might be surprised if [Biden] indeed, the president, who knows, might send constitutional and lyricist candidates. Somehow I doubt it.

In addition to a possible Republican Senate, Biden will take office with far fewer vacancies than Trump, who entered the White House with 112 vacancies, including the Supreme Court seat, 86 district court and 17 district court chairs. Obama, on the other hand, had 53 vacancies. Since Trump’s inauguration, the Senate has confirmed well over 200 judges, including three judges from the Supreme Court.

There there are currently 59 vacancies in the federal judiciary, with 36 candidates pending, including one appellate court candidate and 27 district court candidates. Senate Republicans plan to continue to strengthen judges throughout the lame duck session.

“The good news is that we’ve done a good job – and we’re not doing it as you know – filling the vacancies in the appellate courts to minimize the opportunity for further liberals,” Senator Kevin Cramer said. (RN.D.).

Although Republicans continue to focus incessantly on judges, seats will inevitably become vacant during Biden’s presidency. And you can even see the Supreme Court retreat. Bill Clinton was appointed by President Stephen Breyer, Judge 82 years old. Some judges have delayed retirement in hopes of a Democratic president taking office. The question will be whether Republicans allow Biden to be replaced.

“There are vacancies that you can predict because of age, but then it’s all the rest,” Senator Tim Kaine (D-Va.) Said. “I’m sure he’ll have a lot of opportunities … maybe not right away, just because they’ve filled the vacancies, but in the space of four years, I think he’ll have quite a few.”

Both Democrat and Republican senators suggested that it would be easier for Biden to fill vacancies for district court candidates because of the so-called blue-slip process, in which a senator from a home state helped determine whether the Justice Committee considered a candidate for justice. Republicans have scrapped blue scraps for appellate court candidates – a heated debate with Democrats – but have kept them for lower-level court elections.

The Republican Senate is also taking the possibility of judicial reform off the table. Democrats continue to insist that McConnell blocked Obama’s Supreme Court candidate, Merrick Garland, in 2016, as well as the rushing Barrett ratification, and some on the left have called for higher court seats. Biden stayed away from the court pack and instead proposed a bipartisan committee to review judicial reform proposals. But under the direction of the GOP, Biden’s impact on the courts can probably only be who he appoints to the federal bench.

The elected president’s allies are hoping that Biden’s long-term relationship with McConnell and Senate Republicans will result in his candidates being confirmed, although McConnell has not even acknowledged that Biden has won the White House.

– Joe Biden continued the presidential election collaboration and the operation of Congress is once again one of the top priorities, ”said Senate Chris Coons (D-Del.), Biden’s confidante. – If anyone can sit down and train [McConnell] … the way to reach an agreement is to move the candidates, that is President-elect Biden. I lived through McConnell’s obstacles for years. I know this will be a challenging task. “

Biden’s presidency will ultimately serve as a test of whether both sides can go beyond the brutal battles for the nomination of Supreme Court Judge Garland, Barrett and Brett Kavanaugh, as well as the partisan fingerprint over changing Senate rules. Republicans often point out that Democrats lowered the 60-vote threshold in 2013 to reinforce lower-ranking court judges. But Democrats are quick to contradict that it was McConnell who gutted the filibuster of Supreme Court candidates in 2017.

Some Democrats try to keep an open mind about the possibility of shared governance and are reluctant to predict how their Republican colleagues will behave next year.

“I know how Mitch McConnell approached Obama’s candidates, which wasn’t a very hospitable approach,” Senator Chris Murphy (D-Conn.) Said. “I can certainly try to predict McConnell’s future behavior with past behavior, but hope comes forever. I hope we don’t get to a place where McConnell is trying to keep vacancies open until 2025. “

Burgess Everett contributed to the report.