It’s probably a good time to take a deeper dive on the timing available for judicial nominations. I think Republicans will hold the Senate, but recent polling out of Alaska and Ohio coupled with Senate Leadership Fund ad reservations in Iowa and the prospect of Ken Paxton in Texas all mean that we shouldn’t take it for granted. In other words, we should assume as a matter of prudence that the back two years of Trump will be under Majority Leader Schumer and plan accordingly.
1. If the White House hits its marks, there are six hearing slots available between now and the August recess: one in April, one in May, two in June, and two in July. Under traditional custom, this allows for up to twelve circuit nominees and up to around 30 districts (depending on how many circuits move).
The ideal schedule looks something like this:
Slate 1: April 15 (hearing); May 14 (second markup); May 18 (earliest floor consideration)
Slate 2: May 13 (hearing); June 11 (second markup); June 15 (earliest floor consideration)
Slate 3: June 3 (hearing); June 25 (second markup); July 13 (earliest floor consideration)
Slate 4: June 17 (hearing); July 23 (second markup); July 27 (earliest floor consideration)
Slate 5: July 15 (hearing); August 6 (second markup); September 14 (earliest floor consideration)
Slate 6: July 29 (hearing); September 24 (second markup); September 28 (earliest floor consideration)
This presents the possibility of confirming up to seven circuit nominees before the August recess (only one is on deck for the April 15 hearing) and then up to four more in September. Ben Flowers was just announced for the Sixth Circuit, which should position him for a May hearing; ideally someone will join him there. In which case — again, ideally — the Tenth and Eighth Circuit nominees will move on June 3, leaving six more slots open for nominees before the election.
A nominee for the July 29 hearing would need his or her paperwork in to the committee by July 1, which means the vacancy would really need to occur by around Memorial Day. Yes, the White House and DOJ can move faster than a month if absolutely necessary, but it’s a risk.
Of course six vacancies arising on Memorial Day won’t work; to have a replacement up for the July 15 hearing, the vacancy should ideally arise by mid-May. For the June 17 hearing, the paperwork will need to be in by May 20, which means the vacancy/vacancies would need to occur in the next week or two.
2. What if there’s a Supreme Court vacancy? That is unlikely to happen but if it does, it won’t affect the schedule as laid out above very much. Any vacancy would likely be announced at the end of term — so around June 30 or July 1. Roughly following the Kavanaugh schedule, the Supreme Court hearing would be on the heels of Labor Day, even though the Senate is out of session. Using precedent from Barrett, the nominee could conceivably be reported out by September 17 in order to ensure confirmation before the October recess.
This doesn’t necessarily impede any of the July committee work or the September 24 markup, depending on workforce availability in the Senate and the administration.
3. What are the other known unknowns? This explanation assumes things go well. They usually don’t.
While all this is going on, Congress will both be working on a reconciliation bill to fund ICE (a tiring process that eats up floor time in the Senate) as well as trying to fund the government starting in October (itself a heavy lift). Also recall that circuit judges still take 30 hours, as will an attorney general nominee, who will perhaps need to be slotted into this as well. This combination of legislative imperatives will make managing the floor very difficult for Thune, but he’s surely up to the challenge.
Of course this assumes that Thune has effective control of the floor. Some Senate Republicans are still calling for a “talking filibuster” to pass their elections/immigration/trans chimera bill. A prolonged “talking filibuster” would prevent both committees from processing nominees and the whole Senate from voting on them. As can be seen above, the window for processing circuit judges over the next four months is closing fast; it’s impossible to conceive of how it would be possible both to fill these circuit vacancies and “break” a talking filibuster at the same time — leaving aside the further complications of budget reconciliation and an attorney general.
There’s a certain category of congressional activist/expert that disdains judicial confirmations. Perhaps because they’ve never really worked the issue (almost none of them are even pretend lawyers), they view it as lazy point-scoring that’s easy to execute. (This informs their “anyone could have done that” attitude to McConnell c. 2015–20.) This will be a background motivation in the coming months for continued talking-filibuster activism. Again, insofar as almost none of them are lawyers, it makes some sense for them to privilege esoteric proceduralism over maintaining a conservative judiciary. For the rare attorney among them, it’s more perplexing.
4. Attendance will be an issue going forward. Everyone seems to recognize that this will be a hard year electorally for Republicans, which means that in-cycle senators are going to want to spend as much time as they can campaigning back home. There will be constant pressure from some combination of Senators Capito, Collins, Cotton, Graham, Hagerty, Hyde-Smith, Marshall, Ricketts, Risch, Rounds, and Sullivan to keep them in and voting as little as possible. Hopefully Senators Cornyn and Cassidy will be on that list as well, because, should they lose their primaries, their attendance also becomes less reliable. (I have little doubt that Cornyn would continue to do his job on judicial nominations, though, because he cares about the issue.) In any event, we have to assume that October votes won’t be happening absent a shutdown and that even September votes will require sophisticated whip work from Senator Barrasso.
This is only a preview of what awaits in the lame duck. We know for a fact that Senators Tillis, McConnell, Ernst, Tuberville, Daines, Lummis, and Armstrong won’t be coming back next Congress. If Senator Blackburn is elected governor of Tennessee, you can add her to the list. And, unfortunately, we may be looking at a few of the in-cycle members being added, too.
It is virtually impossible to force these people back to vote if they don’t want to. Some may be interested in some future public office and perhaps they could be pressured into it. But otherwise it’s purely a question of duty, ideological commitment, and personal cajoling from leadership. It’s not just (or even primarily) the “RINO” or “GOPe” senators who are the problem in this context.
Maybe Thune will be able to pull lame-duck rabbits out of his hat, in which case a September hearing or two could work, if there isn’t a Supreme Court vacancy. But no one should count on it. This ride ends in October.