Senate Democrats Panic As Mitch McConnell Prepares A Mini-Nuclear Option To Speed Judges

Caricature by DonkeyHotey

Caricature by DonkeyHotey

If you voted for President Trump because you believed that confirming sane judges was preferable to another Democrat president confirming more insane federal judges, then you have every reason to be pleased with the way the Trump White House has worked with Mitch McConnell to begin changing the very character of the federal judiciary. In the past couple of weeks, new, young conservative justices have been added to the DC Circuit (Neomi Rao pending), the liberal 4th Circuit (Allison Jones Rushing), and the truly bizarre 9th Circuit (Eric Miller).


While the White House has done its job by sending large numbers of highly qualified conservatives to the Senate for confirmation, the stumbling block has been the Senate. Even though Harry (no, really, it was an exercise band that busted my face, not the guy in the assless chaps) Reed did the GOP a huge favor by eliminating the ability of the minority to filibuster judicial nominees–which McConnell used to make the same rule apply to Supreme Court Justices–a disciplined minority bent on obstruction can make the process slow as each nominee is subject to thirty hours of debate. For instance, Eric Miller’s nomination was reported out of committee on February 9, he wasn’t voted on until February 26. Chad Readler (6th Circuit) was reported out on February 7 and will be voted on today.

Now McConnell is moving to change all of that:

Even more alarming for Democrats, the GOP is also preparing to pull the trigger on the “nuclear option” and change Senate rules once again with a simple majority to allow much quicker confirmation of lower court judges in the coming months.

“The committee is working to put [judges] out on the floor and as soon as they come to the floor the leader’s making it a priority to move them,” said Sen. John Thune of South Dakota, McConnell’s top deputy. “It’ll be a high priority for the foreseeable future. I mean, it’s one of the things we can do that we don’t need the House’s help with.”

The longtime GOP leader accused Democrats Tuesday of “mindless obstruction” and said he hopes to overhaul the rules under the regular procedure, which requires 67 votes. But McConnell also suggested he’s ready to move forward even if Democrats do not support the change: “In the absence of [bipartisanship], it’s still my desire to try to achieve that.”

Republicans believe they have the required 50 votes for the nuclear option but are hoping to achieve complete caucus unity, which might prove difficult. Sen. Roy Blunt (R-Mo.) could be seen trying to sway Sen. Susan Collins (R-Maine) on the Senate floor on Tuesday during a vote.

Sen. James Lankford (R-Okla.) said McConnell is likely to move soon, but won’t call up the rules change on its own. Instead, he’s likely to set up votes on a nomination and then move to change the rules when and if Democrats resist.


What this rule would accomplish is allowing McConnell to schedule votes on all nominees as soon as they are reported out of committee.

Schumer is gamely trying to get the GOP to do what it does best: forget it has the raw power to do what it wants to do and proceed to negotiate away its advantage.

In an interview Tuesday, Senate Minority Leader Chuck Schumer (D-N.Y.) outlined a potential compromise to avoid a “nuclear” clash: Reinstate Democrats’ ability to weigh in on home state Circuit Court nominees via the “blue slip” practice in exchange for bipartisan support for shortening debate on Trump nominees.

“My answer to them is restore the blue slips and then maybe we can come to a compromise,” Schumer said, adding that he had spoken to several GOP senators about it. “They’re eroding democracy, they’re eroding bipartisanship and sooner or later, they’ll regret it.”

Schumer is trying to get them to trade something they already have, that is the power to change the rules, for veto power over judicial nominees in blue states.

This is what is really at stake:

The Senate is on track to confirm the 34th Circuit Court judge of Trump’s presidency in the next week and the GOP has three more ready for floor action; that would give Trump roughly 20 percent of the Circuit Court seats in the country after just two years in office. At this rate, McConnell and Trump could leave few, if any, vacancies there for a potential Democratic president in 2021.


The White House and Lindsey Graham can crank out nominees at a record pace. If McConnell is able to change the rules to speed confirmation, Trump’s presidency will be significant in a way few others have been. He will have shaped the federal judiciary for the next couple of generations.

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