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Republicans Lost The House, But That Won’t Stop Them From Confirming Judges In The Senate

A divided Congress will make it tougher for Trump and Republicans to pass legislation. But they only need control of the Senate to keep confirming federal judges to lifetime appointments.

Posted on November 7, 2018, at 8:34 a.m. ET

Joshua Roberts / Reuters

WASHINGTON — Democrats have won control of the House of Representatives, but they still can’t stop the Trump administration from pressing ahead with one of its top priorities, and one with lasting consequences: the confirmation of conservative judges to lifetime seats on the federal bench.

With Democrats in the majority in the House, they can hold up legislation. They can launch all the investigations and issue all the subpoenas they’ve been blocked by Republicans from doing for two years. But the Senate is unilaterally responsible for vetting and confirming the president’s judicial nominees, and Republicans managed to expand their majority.

The confirmation of judges has been a focus for the Trump administration from the start; President Donald Trump took office with lists of potential nominees not only for the US Supreme Court, but also the lower courts, ready to go. With Republicans in charge of the Senate for at least another two years, the White House can continue to churn out nominees with the knowledge that Republicans will be able to move them through.

"We intend to keep confirming as many as we possibly can for as long as we're in a position to do it," Senate Majority Leader Mitch McConnell told reporters on Wedneday. "So it will still be my top priority in setting the agenda here in the Senate."

Since Trump took office, the Senate has confirmed 29 appeals court judges and 53 district court judges — and, of course, two US Supreme Court justices.

As of Tuesday, there were 122 open seats in the federal appeals and district courts, and another 20 upcoming vacancies have been announced so far. There are 55 nominees pending in the Senate. The Senate won’t have enough time to get all of those nominees confirmed by the end of the year, but they can pick them up again in the new year.

If the Trump administration fills all those seats, his nominees will hold a quarter of all active federal judgeships. New vacancies will continue to open up as judges reach retirement age and become eligible to take senior status, meaning they can still get their salary but take a reduced caseload.

Republicans are pushing to get as many nominees confirmed by the end of the year as they can. Before the Senate left for the preelection recess, they reached a deal with Democrats to hold final confirmation votes on a package of 15 judicial nominees, to the dismay of liberal advocacy groups who have been pushing Democrats to do what they can to delay confirmations, even if they lack the numbers to stop them altogether.

And during the recess, when most members were away campaigning, the Senate Judiciary Committee held two hearings on judicial nominees — including a few of the president's controversial picks — over objections from Democratic members of the committee. Chairman Chuck Grassley insisted his Democratic colleagues had agreed to the dates with the understanding the Senate might go into recess; Democrats countered that they had not agreed to actually hold hearings during the recess.

Grassley spokesperson Taylor Foy previously told BuzzFeed News that the committee was looking at holding at least three more confirmation hearings before the end of the year. There are 32 nominees who have been voted out of committee and are waiting for a final vote by the Senate.

"I remain concerned for what an emboldened GOP Senate will do, especially, when it comes to the President's aggressive campaign to push the judiciary farther to the right," Caroline Fredrickson, president of the liberal lawyers group the American Constitution Society, said in a statement about the midterm results. "But our country now has a mechanism to help hold the President accountable, that we didn't have, when the evening began."

UPDATE

Updated with comment from Senate Majority Leader Mitch McConnell.

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